Sex workers win the right to anonymity in Ontario legal challenge

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Sex workers have won a preliminary motion in an ongoing legal challenge against the province of Ontario that will allow them to present anonymized affidavits in the case, an Ontario Superior Court judge decided Tuesday.

The Toronto-based sex worker rights group Work Safe Twerk Safe alleges that the government of Ontario's September 2020 decision to close down strip clubs -- while allowing bars and similar venues to remain open -- was discriminatory to strippers and sex workers more broadly.

The group filed a legal challenge to that effect on October 26, 2020, arguing that the province's decision to close strip clubs was a reactionary measure after two COVID-19 outbreaks at Toronto strip clubs were sensationalized in the media. 

On Tuesday, the group won its preliminary motion to include strippers' sworn statements about how they were impacted by the September closure in the form of anonymized affidavits.

The affidavits will bear initials, but the initials will not match the legal names of the workers involved.

In an emailed statement, a spokesperson for Ontario's Ministry of the Attorney General said Ontario opposed the motion for anonymization.

"Ontario's position was that the applicant has not met the high threshold for departing from the rule that witnesses must give evidence using their real names." The spokesperson declined to comment further as the matter is before the court.

While Tuesday's decision did not take a position on the strength of Work Safe Twerk Safe's application for judicial review, it did pave the way for strippers to participate in the legal proceeding in a safe and secure manner that protects not only their livelihood, but also their physical safety and mental well-being.

Without the protection of anonymity, strippers might be deterred from submitting affidavits to the court given the risks associated with having their legal names publicly associated with their sex worker identity.

"Without the affidavits, the court would have not heard evidence from the strippers -- this would have been a case about strippers, without strippers," said Naomi Sayers, legal counsel to Work Safe Twerk Safe in the case. 

According to Jennifer, a stripper and organizer with Work Safe Twerk Safe, anonymity for sex workers can be a matter of life and death, which is why it was so important that the court admit anonymized affidavits in this case.

"This could mean getting stalked. This could mean getting doxxed. And this could literally mean potentially getting physically harmed and murdered. So these are very real fears," she said. Jennifer is a pseudonym for these same reasons.

Judge Lise Favreau decided that there was a "real and substantial risk that [Work Safe Twerk Safe] cannot access the courts on behalf of the strippers absent an anonymization order." The risk to strippers needed to be beyond the risk of simple embarrassment or emotional distress, but rather the risk of debilitating emotional or physical harm.

While the province of Ontario argued that Work Safe Twerk Safe had not provided sufficient proof of the risk strippers would be taking in publicly self-identifying, Favreau decided that the risks were able to be determined through a combination of the evidence and "reason and logic."

Further to the risks of physical or violent threats strippers may face if their identity were public, they also face the risk of reprisals from strip club owners, who are generally opposed to anything they perceive to be labour organizing.

So too is there a risk of reprisals from current and future employers outside the sex industry due to the negative stigma associated with sex work and stripping.

Moreover, this stigma can put the familial relationships of strippers and sex workers at risk, and puts strippers who are parents at risk of losing their children to child protection services.

Some attribute the stigma surrounding sex work to a longtime moral panic surrounding the nature of the work, but the stigma itself takes many forms: including as a refusal by some to recognize sex work as valid work. The social stigma surrounding sex workers -- including strippers -- is what is ultimately at the heart of the legal challenge.

In August and September of last year, two COVID-19 outbreaks at Toronto strip clubs were widely reported in the media, one at Club Paradise and another at Brass Rail. When the outbreaks occurred, contact tracing was very much complicated by the fact that many patrons of the clubs had provided false names and contact details.

After the September outbreak at Club Paradise that saw seven people infected, Toronto Mayor John Tory asked why "these places" needed to remain open, referring to strip clubs. 

Shortly thereafter, the provincial government announced its decision to close strip clubs across the province, regardless of the fact that the province has no regulatory or legal jurisdiction over the clubs.

In a statement on its website, Work Safe Twerk Safe said its coalition of strippers was concerned they were being treated differently than workers at other bars.

"We feel that the decision to enact these provisions to close strip clubs specifically relates to discriminatory and stereotypical assumptions about strippers as vectors of disease," read the statement, adding that the workers feel they were entirely left out of the decision that impacted them.

The lack of consultation of strippers surrounding the closure is a key point in the legal challenge, which argues that there were other potential options to mitigate the risk of COVID-19 that the government failed to consider.

"Had we been consulted prior [to the initial outbreaks], we would have, for example, pointed out the gaps in the contact tracing protocols," said Jennifer. The workers were aware that both they and their clients had privacy concerns, and she felt the contact tracing could have been done in a way that respected that.

As for the stigma around strippers and sex workers more broadly as vectors of disease: "It's outdated. It's not factual. As strippers and all other sex workers, we have our own unofficial harm reduction practices," said Jennifer, adding that sex workers are often early adopters of public health measures. 

Take hand sanitizer, for instance. Sex workers, including strippers, have been regular users of hand sanitizer for decades, she said, and it's common practice for strippers to have it on them at all times.

Work Safe Twerk Safe further asserts in the legal challenge that the province's order to close strip clubs was unconstitutional, as it breached the strippers' constitutional right to freedom of expression, under which dance is a protected form of free speech.

The "arbitrary and biased" decision to close the strip clubs has the potential effect to close strip clubs down permanently, reads the legal challenge. In this case, strippers might lose the "right to freedom of expression and association in a safe, secure environment and to dance/work freely in the environment they choose."

Sayers said she and her team are working out next steps in the challenge with the province. The next court date has not yet been determined.

Chelsea Nash is rabble's labour beat reporter for 2020-2021. To contact her with story leads, email chelsea[at]rabble.ca.

Image credit: Jamie Street/Unsplash

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