Terri-Jean and one of her pals. via Facebook.
The viciously-debated Terri-Jean Bedford Supreme Court decision will be revealed tomorrow, but some Canadian sex workers are saying that even if all three of the laws challenged as unconstitutional are struck down, their work life will remain riddled with problems.
To be more specific: the laws will still be utterly racist and classist, and they will continue to fail at protecting women who work in the industry. They will also, effectively, keep many forms of sex work illegal—even though having sex for money is technically not against the law in Canada.
To provide you with a recap of what this decision is about, Terri Jean Bedford, Amy Lebovitch and Valerie Scott challenged Canada’s “prostitution” laws (government’s word, not mine), on the basis that their rights were violated under the Canadian Charter of Rights and Freedoms. Specifically, they challenged the fact that it is unlawful in this country to operate a “common bawdy house” (shows what era we’re living in here—the Wife of Bath sends her regrets), live on the avails of “prostitution,” (making it difficult to impossible for many sex workers to hire managers, drivers and security personnel), or communicate in public for the purpose of “prostitution.” These new policies will make it extremely difficult for sex workers to find clients.
Initially the court agreed with Bedford, and Justice Susan Himel struck down all three laws. The government appealed, and in 2011, the Ontario Superior Court issued a mixed ruling—to live on the avails was decriminalized, except in “cases of exploitation”—a clause that is too subjective, according to sex workers I’ve spoken with. Communicating for the purpose of “prostitution” remains illegal—which is another very vague ruling. Both sides appealed the decision, and the Supreme Court of Canada heard the case in June.
So, what does race have to do with this decision? Sex workers say these laws are racist because they negatively affect those who live and work on the street, and often, those workers are the ones who are already marginalized in some other way. Monica Forrester, a trans sex worker with 25 years of experience, explains the inherent racism woven into our laws surrounding sex work in such a way that makes it difficult to misconstrue.
“Who benefits from these laws if they are changed? Gender, race, and class play a big role.”
The answer to Forrester’s question became clearer to me as we spoke about these issues. The people who stand to benefit from these new laws are largely those who already operate from a privileged position in the industry—i.e. those who can afford to live and work indoors in the first place. Immigrants, “people of colour,” people who live and work on the street, HIV sufferers, and trans people likely will not benefit, just as they are not benefitting now.
“As much as it’s empowering to see these things challenged—and hopefully changes are made—at the same time, what does it look like for the whole community? That’s the scary part.”
“We have to make sure that the marginalized groups are not misrepresented. The marginalized people that don’t have a voice, that are silenced. They are the most affected by the laws, by lack of services.” Basically, women working indoors with high priced escort services, for example, are not visible, so they are not often penalized. And women on the streets become the scapegoats.
Brazen Lee, another sex worker operating out of a major Canadian city, agrees with Forrester’s analysis that the laws will remain racist, no matter what happens on Friday. Lee has white skin, and works indoors. And from what she’s seen of the industry over the last five years or so, most sex workers who work indoors are white. And a much greater proportion who work outdoors are not.
“This is a great start, but this is not enough. At the end of the day, the most vulnerable people in the community are still the most vulnerable.”
She is careful to note that she does not mean vulnerable in a “needs to be rescued” sense, but in a “has fewer resources and is marginalized by society” sense.
At the same time, the situation as it stands is not exactly ideal for indoor sex workers, either. Naomi Sayers, a former sex worker I spoke with, makes that clear.
“When I was working, I did not feel safe nor was I safe. I had to commit criminal acts in order to be safe, and this is coming from my experiences as indoor sex workers… For those that work outdoors, nothing has changed if the laws don’t change.”
Curiously, the major argument many people dream up for sticking with the status quo when it comes to these laws (other than “I think it’s morally wrong,” which isn’t worth addressing), is that many women are in the industry against their will, either through trafficking or sheer desperation. Many, like Meghan Murphy did last week for VICE, will argue that decriminalizing prostitution may not be the answer.
Brazen Lee says that in order to have this conversation properly, and in a way that actually benefits someone, people need to learn to differentiate between trafficking and sex work. The former is clearly never good, while the latter is a nuanced realm through which many workers derive satisfaction—and yes, the means for survival. Her message to the naysayers is that the best way to help the women who don’t want to be in the industry is to decriminalize.
“There are a lot of people in a lot of industries. We don’t try to save bankers on Bay Street. The best way to deal with [people who don’t want to be in the industry] is to decriminalize sex work, and the people who don’t want to be doing it will have an easier time getting out, because they won’t have to worry about going to the police or an agency and being [penalized] for their work.”
Sex workers who choose to work in the industry are both bored and irritated by outside voices telling them that what they do is problematic. Often, these are white women operating under the guise of feminism, and who have never been involved in sex work.
“There are a lot of misconceptions about how sex work is inherently violent or degrading. It is not,” says Sayers. “In fact, how the laws are set up allows violence to exist. When people who speak for the community (yet don’t have any experience as a sex worker), they tend to appeal to the most extreme cases of exploitation or victimization.
“This is problematic because these are the stories that receive the most media attention. It contributes to the moral panic that these moral entrepreneurs wish to feed into. It also silences and ignores the voices of those who have direct experience and who are currently working as sex workers.”
Forrester says that on the vast majority of days, her job is just a job, like any other.
It’s frustrating that there are no solid statistics to work with when it comes to how many sex workers there are in Canada. It would be great to offer an actual number of humans impacted by these laws, but because the laws are such that it is dangerous for sex workers to organize, unionize, or even publicly run a business, they do not widely report their profession. As such, the number of Canadian sex workers remains virtually unknown. Forrester estimates that there are thousands in Toronto. Maggie’s: The Toronto Sex Workers Action Project, says the most they can say is that there are thousands in Canada.
All we can do is listen to the members of this community who are willing to share their experiences, and to advocacy organizations. The laws, according to sex workers, do not treat people equally now, and they will not even if the laws are struck down. Maggie’s: The Toronto Sex Workers Action Project puts it succinctly:
“Sex work is real work and we demand fair and safe working conditions for all of us, including those without status. We stand against the exploitation of all workers and legislation that advances the precarity of labour and creates vulnerability to exploitation,” Maggie’s said in a release explaining the impact of these laws on sex workers, most notably, Indigenous sex workers.
“It is the nature of the system to over-police but under-protect certain communities, and criminalizing any aspect of the sex industry will put more poor and working-class racialized people behind bars—sex workers, clients and third parties such as management and security.”
(For even more context of the laws, see this primer created by Stella.)
Forrester, one of the women most affected by the laws, identifies as a “woman of colour” herself—she is Black and Indigenous—and she knows firsthand that racism is still very much alive in her industry, as in so many others. But in sex work, that prejudice is much more visible than, say, an office environment, where it may manifest itself in an inappropriate comment behind someone else’s back. In sex work, it manifests itself in arrests, incarceration.
Lee works indoors, and she says the worst that might happen to her is that someone could notice her work and call the cops.
“If you work on the street, you’re more likely to get raped. You could get arrested every night.”
For Lee personally, the decision surrounding the bawdy house provision is the most important.
She tells me she is low-income right now, and that’s largely because she can’t see more clients when she wants to because the laws are so restrictive. She’s never been in trouble with the law over her work, but that’s due to nothing more than her own careful judgment.
“I limit myself a lot because of the laws. I’ve lived around here for so long, so I limit my traffic. Sometimes I don’t see a client I need to see because I’ve already seen two more that day.” She makes it a point to strike a careful balance between work and appearing as though she doesn’t work.
“But I’m not on their radar—I’m a well-dressed white girl.”
From what she has seen of the industry, you might have worse luck if you happen to be a non-white, non-well-dressed sex worker. She says racist stereotypes abound, that Asian and Eastern Eurpoean workers are often assumed to be trafficked. Black workers are assumed to have pimps… the list goes on.
She says this challenge is a decent first step, but nowhere near enough to provide sex workers with a safe and respectful work environment.
“I think the original decision that was handed down last year would be the ideal outcome. I mean, not ideal, but ideal for now [as a start].”
Forrester says that even if Friday’s decision falls in Bedford’s favour, it doesn’t necessarily mean sex workers will be able to operate in peace.
“A lot more needs to be done. Even if [sex work] is decriminalized, what other things are they going to put in place? Will there be licenses? Will we have to work only in certain areas? Will there be house checks? That could affect many of us who work out of our homes.”
And a shift to a more traditionally businesslike format, she says, could drastically harm sex workers who work outside. They would be much more likely to be arrested for working and, if something happened to them while working, wouldn’t have recourse to get help since they are operating under the radar and possibly illegally, since many of them may not be able to afford a license.
Hypotheticals aside, Forrester says she doesn’t think the laws will be struck down because of the stigma, the fear, and the Harper government. She says she’s seen too much of this government to let herself think that Bedford will have her way with the courts.
“But if it is, hopefully the government will work with the community to actually make it work and give them dignity and access to safe work.”
Even if tomorrow’s decision falls on the side of Canada’s sex workers, then, Forrester says there will still be much unease within the community. It’s not as though its members have been widely and formally consulted, because there is no mechanism under which to organize. Even if there was, it could still bode poorly for those it impacts most.
“Because we’ve played the game for so long, it’s scary. Personally, I’m scared. What does this mean? How is this going to look? This is a profession that’s kept me in a very comfortable setting in my life.”
Sex work is how Forrester has made her living for many years. She is appreciated within her community and by her clients, and she tells me more than once during our conversation that the work makes her feel empowered.
What’s more, the profession has supported many in a time of economic uncertainty.
“People have to pay rent, and it’s a profession that’s kept a lot of people afloat.”
Just because the laws change, does not mean thousands of women will suddenly flock to the industry—it’s not a logical conclusion. Some might, because they want to/need money/are interested—all of the same reasons everybody else pursues work, of any sort. There are other more nefarious and criminal reasons, too, I will never deny that. But those need to be dealt with elsewhere, according to the women I spoke with. Keeping the profession largely illegal will not make it evaporate—that will only serve to hide it, which will in turn denigrate the workers to a slimy, unsafe underbelly, making it more likely that women will face violence and other forms of oppression.
If we want to do what’s right by women in sex work, whether they’re in it willingly or not, we should let them speak for themselves, and listen to what they have to say. If these laws, deemed unconstitutional by Bedford and so many others, are struck down, this could be one small step toward that end.
To be clear, I do not think that all sex workers choose to be there, or are empowered by their jobs. I also do not think that all sex workers are poor, downtrodden victims who need to be rescued. There are many on either side, which makes it a highly contentious issue to discuss.
That said, women who are in the industry against their will need the rest of society to act in a humane way, and offer them some sort of hand to get out of it, which does not mean applying to them a pitying lens of victimization. If their work is illegal, we’re enacting legislation that will doubly punish them, by arresting them for crimes they did not wish to commit. If they are put in a situation which is dangerous in any way, there should be programs they can turn to, that receive government funding, to protect them from pimps if need be, and to help them find other means of employment. If sex workers are in immediate danger, they should be able to dial 911 for help. But this can only happen if their work is decriminalized in the first place.
Women who choose to be in the industry should be able to celebrate that choice. Lee says clients often tell her that she is their therapy. Forrester tells me sex work is one of the first places she felt fully accepted as a trans woman.
“I just want society to know that sex work has been around forever, and it’s not going anywhere. It’s a lucrative business. It’s an empowering business for many people, and we have to start really looking at this and how we can better work with sex workers and come to a compromise.
“We’re living in the millennium, and things have to change, because it’s not going away.”