Opinion

Clamen and Chu: Sex workers’ rights aren’t yet protected under law

Current legislation undermines the Charter right to life, liberty, security, equality, freedom of expression and freedom of association. We’re challenging it in court.

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Last week, the Canadian Alliance for Sex Work Law Reform, along with six individual applicants, filed a Notice of Application in the Ontario Superior Court of Justice to strike down criminal provisions related to sex work. We contend that the current laws fail to uphold and protect sex workers’ Charter rights to life, liberty, security, equality, freedom of expression and freedom of association.

The impacts of criminal law on the lives and labour of sex workers are very concrete. Current sex work laws make it illegal to conduct sex work in almost any situation: sex workers are breaking the law by merely communicating in public, and the laws also prevent sex workers from clearly communicating with clients and from working with managers, receptionists, drivers, interpreters, security, partners and one another, and from advertising services with a third party.

Criminalizing communication and clients means sex workers cannot negotiate conditions and establish mutual consent to sexual activity, and screen and obtain important information from clients — vital practices for sex workers’ safety.

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Criminalizing clients also means that sex workers risk being evicted from their rented residential or commercial workplaces, as “criminal” activities occur on the premises. Migrant sex workers risk the loss of their immigration status and deportation. The criminalization of sex work also affects sex workers’ ability to cross borders, open and maintain bank accounts without the risk of having their accounts closed or funds seized, and support their families without the threat of child protection services.

The current laws were introduced in 2014 under the Protection of Communities and Exploited Persons Act (PCEPA). This followed a historic win at the Supreme Court in Canada v. Bedford, which declared certain prostitution laws unconstitutional because of the harm they caused to sex workers. These same harms were reproduced in PCEPA and have been responsible for many human rights violations over the past six years.

Sex workers continue to be excluded from labour protections and social programs, are forced to work in isolation, and continue to be targeted by aggressors with impunity. Criminalization also invites police to maintain unwanted and unsolicited police presence in sex workers’ lives, as they target, profile and surveil sex workers — particularly those who work in public, are Black, Indigenous, migrant, trans or use drugs.

While we patiently waited on the empty promises of parliamentarians to uphold the rights of sex workers, these laws have made sex workers more vulnerable to exploitation, poor working conditions and violence. As one of our co-applicants stated, “I’m tired of hiding and running from the police. I hope that my participation in this challenge will show the world that we cannot keep condoning the violation of sex workers’ human rights.”

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The current climate makes decriminalizing sex work all the more urgent. With the COVID-19 pandemic still surging, many sex workers have been thrust deeper into poverty and further away from social supports. Because disclosing their sex work to the government puts sex workers at risk, most are not able to claim the income supports available to other workers.

Decriminalization — the removal of all criminal prohibitions related to sex work — is an important first step towards respecting sex workers’ human rights. It is not the only answer urgently needed; many sex workers will continue to be targeted by police.

To end this repression, we must remove the constant threat of police presence in sex workers’ lives, which means repealing other laws, including immigration laws that discriminate against migrant sex workers and municipal bylaws that single out sex workers for surveillance and punishment, so that they can enjoy their rights to safety, health, equality and liberty.

The criminal prohibitions on sex work are not protective for sex workers; far from it. Rather than making sex workers safer, these prohibitions have fuelled stigma, discrimination, harassment and targeted violence against sex workers, and alienated them from health, social and legal services. Sex workers’ rights cannot be a matter of ideology or public opinion. We believe the courts will agree.

Jenn Clamen is National Coordinator for the Canadian Alliance for Sex Work Law Reform. Sandra Ka Hon Chu is with the HIV Legal Network, a member group of the Canadian Alliance for Sex Work Law Reform.

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