This piece was written in collaboration by the editors and a group of contributors of Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada.
On June 4, 2014, Justice Minister Peter MacKay introduced Bill C-36, The Protection of Communities and Exploited Persons Act. If passed in its current form, the Bill will criminalize the purchase of sexual services, advertising sexual services, communicating for the purposes of prostitution if youth are in the vicinity and most third party managerial relationships. This Bill was the government's response to the 2013 Supreme Court Canada (AG) v. Bedford decision, which emphasized that the health and safety of sex workers must be a priority in laws and policies governing sex work.
Considering the consequences of the proposed legislation on sex workers' lives, relationships and labour arrangements, people who are currently working in various sex sectors should have been prioritized in the policy development process. Meaningful consultation would have seen many, many more sex workers at the policy table. Such engagement with a diverse range of sex workers could have led to draft legislation that truly responds to their health and safety concerns, which were the issues at the heart of the Supreme Court ruling in Bedford.
Instead, Bill C-36 disregards sex workers' lived experiences, social science evidence and the Supreme Court ruling. Indeed, the proposed laws will continue to violate sex workers' human and labour rights, and will undoubtedly contribute to heightened violence, stigma and discrimination.
That said, different groups of sex workers will be differently impacted if the proposed Bill comes to pass. Below we outline some of the negative legislative implications and explain how sex workers can instead benefit from labour rights and protections.
Indigenous sex workers:
Indigenous women, who are over represented in street-level sex work, will be negatively impacted by Bill C-36, both in relation to rates of incarceration and to rates of violence in their lives. In 2010-2011, Statistics Canada reported that 41 per cent of federally sentenced women were Aboriginal, which was more than ten times their representation in the national population.
These numbers show clear bias in the criminal justice system. As well, the vast rates of unsolved murders and disappearances of Indigenous women across the country are indicative of inadequate legal protections to address violent crimes against Indigenous peoples.
The proposed legislation does nothing to address the systemic disparities and inequalities faced by Indigenous women in Canada. Instead, its stated focus on assisting women to 'exit' the sex industry will create further barriers for Indigenous sex workers accessing services to improve their health and safety by making such services contingent on 'exiting.'
Forcing women to leave the sex trade is simply not realistic or feasible for many Indigenous sex workers, particularly those who live in isolated communities with scarce resources and few other employment opportunities. The well-being and safety of Indigenous sex workers across Canada would be best served by increasing understanding of the legal system's role in colonial oppression, and creating local level initiatives to meet Indigenous sex workers where they are at.
Migrant sex workers and 'trafficking':
Over the last decade, campaigns against human trafficking have focused on the commercial sex sector and been used to pursue certain strategies that have adversely affected both migrant and domestic sex workers. At the federal government level, these initiatives have been justified as mechanisms to protect vulnerable people from abuse and exploitation and have included stricter immigration policies, enhanced border security and surveillance, support for criminalization of the sex industry, enforcement raids and undercover sting operations.
Such strategies have generally failed to take into account the root causes and complexities of transnational migration in the global context of human insecurity, dispossession, displacement and the desire for enhanced opportunities. These realities, coupled with increasingly strict border controls and the ongoing criminalization of the sex industry, create conditions in which many migrants, including migrant sex workers, turn to third parties to facilitate cross-border movements. They also drive sex worker migration and their sites of labour further underground, enhancing the potential for abuse and exploitation and limiting access to health, safety and support services.
Bill C-36's proposal to further criminalize some third party managers and to ensure consistency between sex work offences and human trafficking offences will not alleviate exploitation for migrant sex workers.
Instead, sex workers should be central to devising strategies to address complex social and labour conditions for the sex sector, including those of migrant sex workers, as well as in all efforts to address situations of coercion or forced labour in the industry.
The Canadian Criminal Code already contains many generic provisions to address assault, kidnapping, forcible confinement and more. These provisions can be applied to mitigate abuse in the sex industry, just as they are in other labour and non-labour sectors.
Youth engaged in sex work:
Across Canada, various levels of government have introduced legal and policy reforms in recent decades aimed at 'rescuing' young women seen to be sexually exploited through prostitution. Such reforms have included secure care legislation and enhanced child welfare schemes that allow authorities to detain young prostitutes for their protection, programs to encourage youth to end their involvement in the sex trade and promises to criminalize customers and managers as proposed in Bill C-36.
Critics have charged that these measures fail to protect youth engaged in sex work, amounting to unduly harsh punishments that push the youth sex trade underground and drive youth sex workers from accessing social services. Bill C-36's focus on victimization also does little to address the material and social conditions that make sex work a viable option for some young people.
The proposed legislation may worsen the situation for youth in two ways:
1. Given that it criminalizes sex workers who communicate with clients in the proximity of youth (defined as those under the age of 18), youth sex workers who work in pairs or groups to enhance their safety and security will risk being criminalized by virtue of being in proximity of each other.
2. The criminalization of customers will force many street-based youth to meet customers in more dangerous and secluded locales, pushing them even further away from the protection and services that they may need or desire.
Trans* sex workers:
Discussion about Bill C-36 has focused primarily on women, neglecting the presence of significant numbers of transgender people in sex work. The high levels of stigma, discrimination and transphobia in housing and employment have been overlooked as part of the context for why sex work can become a viable occupation for many individuals, and specifically for trans* people. Paying for hormones or gender-affirming surgery is very costly, and anti-trans* stigma can result in high levels of under- or unemployment. Sex work is an avenue for some trans* people, especially trans* women, to make a living and to find a supportive community.
Similar to other marginalized peoples, trans* sex workers are over represented in the street-based trade. Criminalizing communication in places where youth may be present, which is conceivably any public or residential area, combined with criminalizing the purchase of sexual services, will continue to displace street-based trans* sex workers from their communities and compromise their ability to earn a living. They will need to decide between the risk of relocating to areas away from police view to protect themselves and their clients from arrest, versus the risk of staying in more public areas where they are less vulnerable but lack the ability to screen clients.
Criminalization under Bill C-36 will therefore expose street-based trans* sex workers to the risk of increased violence.
Male sex workers:
Male sex workers comprise a significant number of sex workers in Canada. The lack of research on male sex work makes exact numbers difficult to determine; however in the late 1980s, the Fraser Committee on Pornography and Prostitution estimated that between ten per cent and 33 per cent of street-based sex workers in large Canadian cities were men. Despite this, male sex workers and their particular needs and experiences are largely invisible in discussions about sex work, including during the drafting of Bill C-36.
Many male sex workers encounter stigma and discrimination, which create barriers to accessing health care and social services. This stigma is similar to that faced by female sex workers, but male workers face even greater invisibility, which can lead to further social marginalization. Male sex workers also face intense homophobia, and have few support services, organizations and programs to access.
Criminalization through Bill C-36 will work to amplify stigma and further reduce visibility of male sex workers. Criminalizing communication where youth may be present and criminalizing the purchase of sexual services will work to displace street-based male sex workers from their communities and from access to necessary supports.
Indoor sex workers:
While the proposed legislation will certainly have detrimental impacts on street-based sex workers, those working indoors will also be adversely affected. Criminalizing both clients and the advertisement of sexual services will severely compromise indoor sex worker's ability to earn money to support themselves and their families.
Approximately 80 per cent of prostitution in Canada takes place indoors, which lived experience and research has shown to be safer than street-based work. Bill C-36 creates the potential for many harmful outcomes for both independent indoor workers and those who work for third parties, for example, at escort agencies, brothels or massage parlours.
Independent sex workers often pay high fees to advertise and require considerable investments in cell phones, Internet and photography services, all of which are very difficult to access without a credit card, bank account, proper identification or existing surplus income. While independent sex workers can often exercise high levels of autonomy over their work, many sex workers do not have access to the resources required to work independently, or they may prefer to work with third parties because they are not willing or able to work independently.
Notably, recent research on third parties in the sex sector suggests that managers provide many of the same services as managers in mainstream jobs.
The measures proposed in Bill C-36 will limit sex worker's options and will deny indoor workers the ability to make personal and professional decisions about how to organize their lives and support themselves financially.
Sex workers' labour rights:
Bill C-36's framing of prostitution as solely a form of exploitation and never a form of legitimate work denies sex workers' basic labour and employment rights. Empirical and anecdotal evidence demonstrate that sex workers can benefit from employers like escort agencies as they provide security, advertising and other services.
However, the proposed prohibition against commercial enterprises receiving material benefit from prostitution continues to criminalize these favourable relationships. While the Bill includes a limited exemption for some third party relations, it will fail all but the most privileged workers, as most lack the resources to independently hire drivers, security guards and other supports, leaving them as vulnerable as they were prior to Bedford.
Without the barrier of criminal law, sex workers would be openly protected under labour and employment standards legislation. This would include provincial occupational health and safety regulations such as those governing the safety of people working alone, violence in the workplace and the right to refuse unsafe work conditions. People in the sex trade would also have improved redress for discriminatory hiring and labour practices under human rights codes. The recognition and treatment of consensual adult sex work as a form of labour would permit interested workers to form legitimate professional associations and unions, and advance their well-being through labour organizing.
New Zealand is an example where laws and policies were created through close consultation with sex workers. As a result, sex workers' occupational health and safety is explicitly promoted, while upholding protections for youth and communities.
Research has shown that criminalizing the consensual exchange of commercial sexual activities leads to increased violence, stigma and discrimination of people in the sex trade, with those who are already the most vulnerable made even more so. If the government was truly following the spirit of Bedford, it would decriminalize sex work activities and advise against policy approaches that see prostitution solely as a form of exploitation.
Canada should follow a similar path as New Zealand to ensure the safety and rights of sex workers.
Background of the book and authors
We write this short article as a group of researchers and sex workers who have cumulatively studied and/or worked in Canada's sex industry for decades. We are also a selection of contributors to a new edited collection on sex work in Canada, Selling Sex, that includes chapters by current and former sex workers, allies, and academics who lend their personal insights and experiences to examine prostitution and other forms of sex work from a variety of perspectives. We support the human and labour rights of sex workers and the full decriminalization of the sex industry.
Editors of Selling Sex:
Emily van der Meulen, PhD, Assistant Professor in the Department of Criminology at Ryerson University
Elya M. Durisin, PhD Candidate in Political Science at York University, member of Maggie's: Toronto Sex Workers Action Project, and Board of Directors of the Global Network of Sex Work Projects
Victoria Love, sex worker, author and member of Maggie's: Toronto Sex Workers Action Project
Contributors to Selling Sex:
Joyce Arthur, co-founder of the feminist advocacy group FIRST Decriminalize Sex Work, writer, and activist
Cheryl Auger, PhD Candidate in Political Science at the University of Toronto and member of Maggie's: Toronto Sex Workers Action Project
Steven Bittle, PhD, Assistant Professor in the Department of Criminology, University of Ottawa
Jenn Clamen, coordinator of the Canadian Alliance for Sex Work Law Reform, co-founder of the Canadian Guild for Erotic Labour, and member of Stella, Montreal's sex worker rights organization
Tor Fletcher, MA, activist and Board of Directors of Big Susie's, Hamilton's sex worker rights organization
Kara Gillies, sex worker, co-founder of the Toronto Migrant Sex Workers Advocacy Group, and co-founder of the Canadian Guild for Erotic Labour
Sarah Hunt, PhD, Kwagiulth researcher, writer and activist
Annalee Lepp, PhD, Associate Professor and Chair of the Department of Women's Studies at the University of Victoria, President of the Women's and Gender Studies et Recherches Féministes (WGSRF), and founding member of the Global Alliance Against Traffic in Women (GAATW) Canada
River Redwood, sex worker and Board of Directors of Big Susie's, Hamilton's sex worker rights organization
Trish Salah, PhD, labour activist, former member of CUPE 3903 and CUPE's National Pink Triangle Committee and Assistant Professor of Women's and Gender Studies at the University of Winnipeg
Photo: flickr/Kaytee Riek
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