Taking Back our Humanity: a Question of Strategy!
By Adore Goldman
Translated by Tess McCrea
Faced with the Trudeau government’s broken promises to decriminalize sex work in its second term, the Canadian Alliance for Sex Work Law Reform (the Alliance) launched a constitutional challenge to laws criminalizing sex work in March 2021. The coalition, which brings together 25 sex worker (SWer) organizations and allies across the country, has exhausted other avenues: lobbying political parties and making media appearances has proved not to be enough. The Alliance, along with six other plaintiffs, claims that the Protection of Communities and Exploited Persons Act violates the fundamental human rights of SWers under the Charter of Rights and Freedoms. 1
It must be said that at the time of the lawsuit, the ground seemed ripe for legal change. In the winter of 2020, an Ontario Superior Court judge declared certain provisions of the law on prostitution to be unconstitutional.2 Two owners of an escort agency, who had been charged with pimping, succeeded in having these laws recognized as impeding the right to safety of SWers. In the summer of 2023, a SWer won her case against a client who refused to pay her in Nova Scotia Small Claims Court.3 Adjudicator Darrell Pink handed down a landmark decision, which described the plaintiff’s work as “legal”. Internationally, the European Court of Human Rights has just agreed to hear the case of 261 SWers against the French government. The plaintiffs similarly argue that the criminalization of clients and third parties hinders their human rights.4
However, in September 2023, almost a year after arguing before the Ontario Superior Court, the Alliance was disappointed by the outcome: Justice Goldstein ruled that the law was constitutional, and that decriminalization might be a better legal model, but that it was ultimately for Parliament to decide, not the judiciary. In the face of this decision, Jenn Clamen, coordinator for the Alliance, declared that SWers across Canada were “extremely devastated” by the ruling, finding it “not only insulting, but ignorant”.5 Monica Forrester, plaintiff in the case, added that “Indigenous, Black, migrant and trans sex workers bear the brunt of the criminalization of sex work, as we are communities that are already excessively policed and under-protected”. The Alliance plans to appeal the decision.
We would, however, like to express some reservations about the Alliance’s strategy of legal challenge. Relying on the courts to arbitrate our political conflicts is a risky gamble. We believe that there are other avenues that have not yet been explored to achieve the decriminalization of sex work in Canada. We need to exert real power if we want to achieve our goals and concretely improve our working and living conditions. Our proposition goes as follows: by organizing into unions, it’s possible to organize for decriminalization on a much more lasting and powerful basis!
Judgement does not come suddenly; the proceedings gradually merge into the judgement. -The Trial, Franz Kafka
Before elaborating on our perspectives on this fight, we first want to substantiate our critique of legal challenges as a strategy.
Our first criticism concerns the complexity of the judicial system, and our inability to impose our strategies in this arena. For most of us, the courts are intimidating and impenetrable. We don’t speak their language. We don’t have the tools to make our stories and political demands heard. So we need lawyers as interpreters. They are the ones who plead our cause. The words of SWers thus become mere testimony. And for us SWers who don’t work in Alliance-member organizations, or who are not plaintiffs, we are completely deprived of any strategic power in the matter. It’s also disempowering to have to transform the language of political organization into the language of the courts. The opponent’s control of words gives him great power; we find ourselves trapped in this Kafkaesque bureaucratic absurdity.
In this case, even before the trial began, compromises had to be made to fit into the judicial framework. For example, it is not possible to attack both criminal and immigration law at the same time. Yet it is under the latter that SWers who do not have permanent residency are deported. The strategy has been to attack the criminal law first, then turn towards the immigration law. In our view, this two-stage strategy is a strategic error. In New Zealand, the first country to decriminalize sex work, migrant sex workers who are not permanent residents are still unable to work legally, twenty years after decriminalization. It is convenient for the government to claim that it has decriminalized sex work while continuing to use arguments against sex trafficking. In other words, repression is shifted entirely onto migrant sex workers. Yet we know that difficulties immigrating through regular channels lead people to turn to third parties to cross borders and find jobs in Western countries, whether in the sex industry or elsewhere.
Our second criticism is that resorting to the courts also leaves us without an organized SWer movement capable of exerting power against the government. Because even in the event of a court victory, the bill will still need to be written. In 2014, after the Bedford ruling that declared the sex work law unconstitutional, the Conservative government introduced the current model that criminalizes clients and third parties. It’s not impossible that by the time of the Supreme Court ruling, a Conservative government will be in place again. In any case, a strong and organized movement, not limited to employees of Alliance-member organizations, will be necessary to ensure that there are no shortcomings in the new law; lobbying political parties and making media appearances is not enough.
It would be foolish to think we can do everything without picking our battles. Resorting to the legal system is a costly business: the lawyers, our interpreters, don’t work for free. Litigation gobbles up an impressive amount of resources in terms of money and human labor. For example, the organization Stella spent $120,105 on legal fees in 2023, and $173,552 in 2022. 6Legal fees are their second-largest budget item after salaries and benefits. These resources are not being put into mobilizing and self-organizing SWers for political change and better working conditions.
Even with a law decriminalizing sex work in its entirety, many of us would still be facing unjust working conditions, powerless before our employers. It is direct participation in organizing resistance that educates us and makes us stronger. On this point, we agree with Justice Goldstein when he says that it’s not up to the courts to rule; it’s in the political arena that our fight must be waged. To limit ourselves to the legal arena is a mistake.
By centering the whole battle around a change of legal model, the SWer movement has easily been labeled a liberal movement by abolitionists and some of the left. While some are in bad faith, with concerns centered on a moralistic vision of sexuality, part of the opposition to decriminalization stems from doubts about the ability of sex workers to exercise control over their workplace for themselves. By organizing in our workplaces while they are still illegal, we are proving to our opponents the power of our movement and its capacity for self-defense without relying on the state’s power. We believe that the demonstration of this organization could be enough to force the state to decriminalize sex work.
“Stick Together ladies! Your unity is all you have… and all you need!”– Exotic Dancers Union at San Francisco’s Lusty Lady Theater7
As Triple-X Worker’s Association of BC pointed out, Goldstein clarifies the law with respect to the right of SWers to unionize. The judge is unequivocal on the subject: “As I have already emphasized, properly interpreted, PCEPA does not prevent sex workers from forming an association or a collective where it is not a commercial enterprise”.8 So it would be possible for SWers to organize ourselves into a union!
One of the main objections to the union strategy is that it requires SWers to put themselves on the line in the workplace in an illegal context. It is impossible to deny this risk. But we must remember the context in which the first trade union movement was born in the 19th century.
At that time, Capital’s grip on the working day was almost total; it was not uncommon for regular shifts to exceed 12 hours. There are known examples of workers dying of fatigue at work. Child labor was common. In this context, the only thing that put a stop to the capitalists’ greed was the mobilization of workers to limit the working day, at a time when the right to unionization did not exist in any industry. SWers share with the workers of the nineteenth century the almost total absence of rights. Our workplaces are completely deregulated. And yet, even in such a context, organization springs up, and we are capable of gathering power. But to do that, we have to meet up, get up, come together… Organize!
Even in legal environments such as strip clubs, we are unable to enforce working conditions that we consider acceptable, which proves that criminalization is not the only obstacle to better working conditions. Organizing is essential to obtaining rights. This year, strippers at the Star Garden in Los Angeles succeeded in making their workplace the first (and only) unionized strip club in the United States since the closure of the Lusty Lady. A few days later, the dancers at the Magic Tavern in Portland also launched a petition to unionize. At an event organized by SWAC, Reagan – a Star Garden stripper who participated in the strike and took part in the unionization campaign – said that it all started in the dressing rooms. It was while talking to their colleagues that the dancers decided they’d had enough of their dangerous working conditions! They went to their boss with a petition. In response, he fired two of the dancers. So they decided to go on strike. After several months of resistance, the fired employees got their jobs back, and the Star Garden has now reopened with unionized employees who have more control over their working conditions.
The unionization strategy also echoes the mobilizations of the Argentinean and Indian SWers. In Argentina, SWers have a union, the Asociación de mujeres meretrices de la Argentina (AMMAR). AMMAR is part of a national confederation, the Central des Trabajores Argentinos, which brings together traditional trade unions as well as groups of unemployed workers, tenants and Indigenous groups.9 AMMAR has a number of demands, including decriminalization, an end to police harassment and access to the same rights as all workers, such as unemployment benefits and pensions. The union has succeeded on numerous occasions in having several local laws criminalizing SWers lifted.10
In India as well, it is the organization of SWers that has enabled them to establish a balance of power in the face of the state and the police. Prabha Kotiswaran, a lawyer and researcher, reports that in the 2000s, SWers working at the bus stations of Trirupati succeeded in imposing de facto decriminalization through their organization in the face of the forces of law and order.11 Kotiswaran also notes that in Calcutta, the Durbar Mahila Samanwaya Committee (DMSC), a SWer organization with 60,000 members:
while fostering an active political culture of protest against abusive customers, landlords, and brothel keepers. […] despite a highly abusive anti-sex work criminal law, an organization of sex workers has taken root to achieve the results of labor laws that the DMSC is so keen to have applied formally to the sex industry.12
These tactics enabled SWers to self-regulate in this context rather than resorting to the police, who were often no help to them, and even detrimental. These examples show that beyond legal reforms, self-organization is even more important to improving our working and living conditions.
Organizing into a union would allow us to self-organize in our workplaces and improve our working conditions, but it is also possible that this strategy could lead to decriminalization. Firstly, by organizing, we are proving that it is possible to ensure our safety by our own means, without recourse to the police. Secondly, when labor disputes arise, the State will be forced to take a stand. Confrontations between SWers and their bosses are likely to lead to conflicts that the government will be forced to resolve, probably by decriminalizing our work and applying the Labor Code to our workplaces. Of course, this legal mechanism is not a miracle pill, and respect for our rights at work will always require mobilization. But it would certainly give us some leverage and legitimacy. After all, it is always workers’ resistance that provokes economic and political restructuring.
A Battle for our Humanity
Legal challenges such as the ongoing one are based on the following premise: everyone has fundamental rights guaranteed by the state. Where there is a shortfall, the judiciary system is responsible for rectifying the situation. This human rights thesis postulates that there is an intrinsic humanity for all, the denial of which is merely an error to be corrected in an otherwise functional system.
This basic premise is a liberal fiction: in our class-based society, the stranglehold of patriarchal and race-based capitalism denies the humanity of a large part of the population. Furthermore, according to this ideology, only citizens enjoy these fundamental rights; migrants are in no way guaranteed access to them. As Leopoldina Fortunati puts it, “[i]t is only by devaluing them, by reducing [the individual] to a thing of no intrinsic value, that capitalism succeeds in forcing them to define themselves as labor power, to sell their labor capacity in order to obtain an exchange value”.13
If the state guarantees individuals theoretical equality, it is to maintain the illusion that they are free to sell their labor. Thus, according to Lucien Sève, “the social exteriority of the human world in relation to individuals entails, in any class society, its eventual inaccessibility to the majority – humanity has so far progressed through a massive atrophy of individualities”.14 There is a huge gap between the rights that the State “guarantees” us and those that we actually benefit from. Sève invites us to nurture an “ambition for radical emancipation: to form a new world where everyone can [humanize] themselves without impediment”15. Bringing our humanity up to date therefore involves collective resistance against the denial of our humanity. It is by joining forces with our fellow workers that we can truly fight against the denial of our rights.
We cannot count on the State to enforce them. Besides, legal changes are never an eternal guarantee. It’s easy to imagine a post-PCEPA16 future where cities have re-criminalized street-based sex work, where the police continue to harass the most visible sex workers – particularly trans and racialized sex workers – and where migrant sex workers become the focus of the fight against sex trafficking. It is also very plausible to imagine that the injustices in our workplaces will persist and that state institutions will still be conspicuously absent when it comes time to seek justice.
Clearly, the right to our humanity is something we must seize by uniting. We could, for example, organize to block the deportation of our colleagues, to retaliate against police officers who abuse their power, or to have unjust regulations lifted from our workplaces.
We will no longer allow ourselves to be humiliated, whether by our bosses, the courts or the State! To paraphrase James Baldwin, humanity is not something that is given to us, humanity is something that is taken! And it’s high time SWers take it!
1. The plaintiffs contend that the law violates SWers’ rights to safety, liberty, personal and sexual autonomy, life, equality, freedom of expression and freedom of association. In October 2022, the case was heard before the Ontario Superior Court. Find out more about the case: Canadian Alliance for Sex Work Reform. (2022). CASWLR vs. Canada. Our Charter Challenge to Sex Work-Specific Criminal Offences. ↩
2. Jean-Philippe Nadeau. (2020). Des dispositions de la loi fédérale sur la prostitution sont anticonstitutionnelles.↩
3. Radio-Canada. (2023). Travail du sexe: un jugement rare contre une loi qualifiée d’«hypocrite». ↩
4. Human Right Watch. (2023). Europe: un moment charnière pour les droits des travailleuses du sexe.↩
5. Alliance canadienne pour la réforme des lois sur le travail du sexe. (2023). Communiqué de presse: Les travailleuses du sexe sont profondément déçues de la décision de la Cour supérieure de l’Ontario rejetant les préjudices systémiques subis.↩
6. Stella, L’amie de Maimie. (2023). «États des résultats pour l’exercice terminé le 31 mars 2023», États financiers pour l’exercice terminé le 31 mars 2023, p. 1.↩
7. The Lusty Lady was a peep-show in San Francisco where the workers led a campaign to unionize, which they won in 1997. At the time, it was the first unionized club in the United States. To find out more about this campaign, see the film Live Nude Girls Unite! (2000) by Julia Querry, a former dancer at the Lusty Lady, which does a great job of explaining the ins and outs of this movement.↩
8. Triple-X Worker’s Solidarity Association of B.C. (2023). In Canada the Government Does Have Business in the Bedrooms of the Nation Ontario ruling in constitutional challenge of Canada’s sex work laws disappoints but offers clarity on the sale of sex and freedom of association.↩
9. Kate Hardy. (2010). «Incorporating Sex Workers into the Argentine LaborMovement», International Labor and Working-Class History, 77(01):89 – 108.↩
10. Amalia L. Cabezas. (2012). «Latin American and Caribbean Sex Workers: Gains and challenges in the movement», Anti-trafficking Review↩
11. Prabha Kotiswaran. (2011). Dangerous Sex, Invisible Labor: Sex Work and the Law in India, Princeton University Press, p. 130.↩
12. Ibid., p. 248.↩
13. Leopoldina Fortunati. (2022). Production et reproduction: l’apparente antithèse du mode de production capitaliste.↩
14. Laurent Prost. (2009). «Entretien avec Lucien Sève», Le Philosophoire, no 32.↩
15. Ibid.↩
16. Protection of Communities and Exploited Persons Act. The law that criminalizes sex work in Canada, and is being challenged in the current constitutional challenge.↩