Bedford v. Canada: The Labour Rights of Sex workers

2013 Alyssa Clutterbuck 100x150The Canadian HIV/AIDS Legal Network is an intervener in Bedford v. Canada.  The case is a constitutional challenge to Canada’s prostitution laws, specifically three laws in the Criminal Code: keeping a bawdy-house, living on the avails of prostitution, and communicating in public.  Oral arguments in the case took place last Thursday (June 13) at the Supreme Court.  Three plaintiffs, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, first filed the challenge in March 2007.  Last year, the Ontario Court of Appeal held that provisions in the Criminal Code have serious negative impacts on the constitutional rights of sex workers, namely a threat to their health and safety.

It is legal in Canada for consenting adults to legally exchange sex for money; however, most activities related to this exchange are criminalized.  For instance, the Criminal Code makes it illegal for sex workers, their clients, and third parties to communicate about the exchange of sex for money in a public place, or to “live on the avails” of prostitution.  Sex workers are prohibited from taking basic measures to screen their clients, work indoors in a safe, familiar place, or hire security personnel to protect them.

Catholic, Christian, and the anti-feminist group REAL Women formed a coalition opposing decriminalizing the impugned provisions and were granted intervener status to make arguments before the court.  The Evangelical Fellowship was also granted intervener status on its own to argue before the SCC.

On the other hand, the Feminist Coalition and 2 sex-worker led coalitions were denied intervener status by Justice Richard Wagner back in May: The POWER-Maggie’s-Stella Coalition and the International Sex Worker Coalition made up of sex worker associations from Australia, Sweden and New Zealand.  This was a huge blow to ensuring that the voices of sex workers are at the forefront of case proceedings.  As Catherine Healy, coordinator of the New Zealand Prostitutes’ Collective, stated, “Sex workers are the real experts on the sex industry and know first-hand the impact of the criminal law on our safety and human rights. It is extremely concerning to us that the Supreme Court of Canada proposes to examine this case without the input of a broad cross-section of those most affected.”

Also denied status was the Feminist Coalition, representing 23 women’s shelters, rape crisis centres, clinics and women’s rights organizations across Canada as well as internationally.  These groups offer frontline services to sex workers and also work to advance the rights of sex workers.  In addition, the Canadian Civil Liberties Association was denied intervener status.

A group calling itself the Women’s Coalition for the Abolishment of Prostitution (includes the Canadian Association of Elizabeth Fry Societies, the Native Women’s Association of Canada, the Canadian Association of Sexual Assault Centres, Le Regroupement Québécois des Centres d’Aide et de Lutte contre les Agressions à Caractère Sexuel, the Vancouver Rape Relief & Women’s Shelter, and L’Action Ontarienne contre la Violence faite aux Femmes) was granted intervener status, and advocates an “asymmetrical” approach to criminalization.  This approach, known as the “Swedish model”, is underpinned by the philosophical imperative that all sex work is inherently a manifestation of violence against women and, therefore, must be eradicated.  To reach the end of sex work, therefore, laws must continue to criminalize the purchase of sex and those who “promote” sex work, including sex workers themselves.

In 1999, Sweden passed the law Prohibiting the Purchase of Sexual Services (Sex Purchase Act), which punishes those who purchase sex with a fine or imprisonment for up to one year.  The law’s stated objective is to “end demand” for prostitution because sex workers are deemed to be “victims” and sex work is considered to cause serious harm to individuals and to society as a whole.

Evidence from the Swedish sex work industry since the law’s passage, however, reveals that the law perpetuates stigma, discrimination and violence against sex workers, concerns at the core of the constitutional challenge in Bedford.  Street sex workers have reported increased experiences of violence.  Regular clients have avoided them for fear of police harassment and arrest and are instead using the Internet and indoor venues.  This has led to greater competition for clients, driven prices for sex down, and forced sex workers to accept clients they would have otherwise refused, including those who insist on unsafe sex practices.  Sex workers who work indoors continue to be criminalized and are unable to work or live with others, including their partners, since it is illegal to share in any income derived from sex work.

Furthermore, sex workers continue to be denied access to social security benefits that are available to all other workers in legal labour activities.  As in Canada, the Swedish model wrests control from sex workers over their working conditions and institutionalizes an adversarial relationship between sex workers and law enforcement.

The Legal Network’s arguments are informed by principles of the rights to health and work, and embody the perspectives of a range of Canadian and international sex worker activists.  They are also supported by a broad consensus among international health and human rights experts that the criminalization of sex work—and, by extension, sex workers—threatens the health and human rights of sex workers.

It is clear that the legal framework for sex work in Canada must change.  But it must pivot towards seeing sex workers as just that –workers, engaged in labour, and in need of the rights and protections associated with belonging to the workforce.  Bedford is an important step toward providing sex workers their international and Charter rights to freedom of expression, freedom of association, security of the person, right to work, and the right to enjoy just and favourable conditions of work.

Philippine Sex Workers: between a cross and a hard place

by Melissa Austen
A familiar Lou Reed tune cools Burgos Street’s sticky air like a Venice Beach summer breeze—the song’s ‘70s birthplace. “Shaved her legs and then he was a she. She said, ‘Hey babe, take a walk on the wild side.’” 

The lyrics saunter onto the street from a sit-down bar. The bar is popular for its Western continental brunch buffet.  Mainly older, expat men, Filipino girls and baklas fill its seats. Bakla is a local term denoting those who are physically male, but identify and dress as female. Baklas are not a wild sight in conservative Metro Manila. An increasing number of baklas, along with local women and minors, wait along Burgos Street, the Red Light District’s hub, for clients. Their work is a 24/7 operation; a shop whose revolving door remains, for the most part, unguarded. I spent the first three weeks of my stay in the Philippines on Burgos Street.

Coincidentally, my first assignment at the AHRC was to write a petition about a criminal law targeting women sex workers. My task was to investigate how to challenge the constitutionality of Section 1 of RA 10158, which criminalizes sex work conducted by women. Specifically, I examined how our lawyers can establish that Section 1’s targeting of women sex workers is discriminatory under the Philippine Constitution. I was also instructed to recommend for the court to read out the word “women” from Section 1’s criminalization of “women prostitutes.”

There are some advantages to this proposed solution. Reading out the word “women” from Section 1 would make the criminalization of prostitution less arbitrary in its modern application. Many baklas and other transgendered persons, in addition to some men, engage in sex work in the Philippines. Males working under the red light are a blind spot in Philippine law. Section 1 does not capture them, so men are given the green light under Philippine law to engage in sex work. Women alone, because of their sex, are vulnerable to criminal charges for sex work. Reading out “women” from Section 1 would render all sex workers—regardless of their sex—indictable.

Section 1 of RA 10158’s arbitrary criminalization of women sex workers is, of course, unjust and sexist.  For this reason, the Philippine Legislature would likely agree that this law requires revision. Reading out the word “women” from Section 1 would actually support this law’s legislative purpose to criminalize sex work. It is thus possible that the court will find Section 1 to be unreasonably discriminatory toward women under the Philippine Constitution.

For me, things get sticky during the discussion (or lack thereof) on reading out Section 1 in its entirety. The result would be decriminalizing sex work in the Philippines, a paradigm shift that would not go unchallenged. A likely and important critic is the Catholic Church, a prominent actor in many areas of Philippine society. The Church is vested with heavy political clout. For many of my colleagues, the Church’s probable opposition to decriminalization provides a sufficient reason to oppose decriminalizing sex work.

My colleagues’ cultural and religious concerns are valid, and I take them seriously. I also take seriously my role as an intern: I am here to help my organization fulfill its human rights agenda to the best of my ability. As a new visitor, I do not know how to best respond to safety and legal issues facing sex workers in the Philippines. However, many groups against decriminalizing sex work are not responding to all angles of the sex work problem. I wish to see the public weigh its discomfort about decriminalizing sex work against the adverse effects of criminalization on sex workers.

A concern for the well-being and safety of sex workers has led some countries recently to decriminalize sex work. Women and children involved in sex work are vulnerable to rape, murder, AIDS, and other sexually transmitted infections. In the Philippines, over a third of Filipino women sex workers interviewed in 1998 reported that they have been subject to violence or harassment, most commonly from the police, but also from city officials and gangsters. There are no recent figures on violence against sex workers, illustrating the lack of resources given to researching dangers posed to this marginalized group.

Decriminalizing sex work in the Philippines will not fully protect sex workers from violence and illness.  However, sex workers could benefit from a less stigmatized status when seeking social services and accessing the law. Moreover, decriminalization would shift the police’s role from punishing sex workers to protecting them. Those for and against decriminalizing sex work in the Philippines probably agree that improving sex workers’ safety is desirable.

The causes of sex work are just as important to examine as the effects. Surveys of women working as erotic masseuses indicate that 34 percent of these women described their choice of work as necessary to support poor parents, 8 percent to support siblings, and 28 percent to support husbands or boyfriends. More than 20 percent of respondents said that the job was well paid, but only 2 percent said it was easy and enjoyable work. Poverty and familial responsibility, coupled with a lack of economic prospects, are key drivers for poor women to enter the Philippine  sex industry.

I would like to see more discussions in the Philippines on whether sex workers, induced by poverty to enter the sex industry, ought to be punished by the criminal law. Reading out “women” from Section 1 would better carry out the Philippine Legislature’s intent to prohibit sex work in its entirety. Yet the public policy merit of this law has yet to be evaluated on some important fronts. A key front is child welfare.

The relationship between poverty and sex work is particularly stark in the context of child sex workers. The Philippines ranks fourth among nine nations with the most number of children trafficked for prostitution. Pills and condoms are unknown among many child sex workers. Child sex workers commonly drink small amounts of Tide, believing that detergent bleach will prevent STI-transmission. First-line responders say that poverty, peer and family pressure lead most children to sex work. These minors are particularly vulnerable to sexual exploitation because many of them lack knowledge of their vulnerabilities.

The criminalization of sex work in the Philippines is especially dire at this moment. A bill to reduce the age of criminal responsibility to twelve may pass this year. I attended the House of Representatives during the bill’s second passing. If this bill is passed, then child sex workers as young as twelve can be trapped behind bars, beyond the reach of rehabilitation centers. This possibility seems odd since both sides of the decriminalization debate would probably agree that child sex workers require rehabilitation.

In many ways, these children are already locked up by their psychological trauma. Often, children in rehabilitation ”want to change but can’t get out of the system. They feel caged and trapped,” explains Dr. Norietta Calma of the Philippine General Hospital’s Child Protection Unit. Still, therapy can help prostituted children face the truth and finally ”forgive themselves.”  If we view child sex workers as requiring emotional and physical healing, then the question of whether sex work is an illness plaguing poor youth needs fleshing out.  This question is mired with legal implications.

I do not have an answer to this complicated question. All of my expressed concerns are issues I wish to see debated in the Philippines. I situate myself outside this debate.

One truth is clear, though: Philippine sex workers are subject to violence and danger in their workplaces with little or no protection. Women sex workers—and, if the AHRC’s petition is successful, all Filipino sex workers—are caught between a cross and a hard place in the Philippines’ muted debate on decriminalizing sex work.

If the new crime bill passes, then children ages twelve and up will be tacked onto the debate. Sex work in the Philippines is not just a wild, moral problem: it is a grave social crisis with far-reaching health, criminal and social consequences. These consequences require further evaluation by critics and supporters of sex work criminalization.

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