Sex Work, The Law And The Labour Movement

By Kaley Kennedy

In early December, the Supreme Court of Canada struck down three laws regulating prostitution in Canada as unconstitutional. Paying or receiving money for sex acts is legal in Canada, but these three laws dealt with specific aspects of sex work: communication for the purpose of paying or receiving money for sex, operating a bawdy house (a brothel), and living off of the avails (profits) of prostitution. The Supreme Court decision is a victory for the occupational health and safety of sex workers. It could make it safer for sex workers to negotiate with clients, to work with others inside, and hire drivers or security guards. The decision has been stayed for one year, providing Parliament with time to come up with new laws that do not violate the rights of people working in prostitution.*

The consequence of this decision could be an attempt by the current Conservative government to fully outlaw prostitution in Canada, possibly by criminalizing the paying (rather than the receiving money) for sex. Or the result could be safer, more secure working conditions for what is largely a feminized and often at-risk workforce. In fact, since the decision, many sex workers have reported an increase in raids and sex workers and their allies have raised a number of questions about the government’s direction on the regulation of sex work, including its recent survey on the subject.

The regulation of the sex industry, however, is not a novel concept in Canada. Many workers in the sex industry exist under municipal and other regulatory frameworks including porn performers, cam girls, exotic dancers, escorts and massage parlour workers. The Bedford decision provides an important opportunity to talk about the working conditions in sex industries and what role organized labour can play in improving those conditions.

Some of the public discussion of the role of sex workers in the economy has likened sex workers to small business owners or entrepreneurs; they offer a service often as independent contractors. For many sex workers, this is the case: they negotiate directly with their clients on services and payments, they deal with the management of the finances of their work, they hire and fire driving, security, or other staff. Other sex workers don’t own anything and are employees with employers. These workers may be misclassified as independent contractors in their workplaces, but labour and feminist activists should not be fooled by this common attempt to limit workers’ rights by calling them something they are not like taxi drivers and couriers.

I am not a sex worker and I am not pointing to this distinction to buy into any attempts to divide sex workers in the fight to access basic rights and better occupation health and safety standards. Instead, I think the distinction is important, because it illustrates that the labour movement could have a very specific role in improving working conditions for sex workers and creating a greater balance of power between sex workers and their employers, namely by helping these sex workers organize into unions.

To illustrate, I think it is helpful to take a closer look at the municipal regulations governing exotic dancers in Toronto. To work at a strip club in Toronto, you have to hold an adult entertainer license. To obtain a license, you have to file a criminal record check and submit a form. The initial process costs about $400, with an annual $270 renewal fee. Without such a license, you are not legally permitted to work in a strip club in Toronto.

Toronto municipal bylaws lay out the conditions that a dancer must uphold in order to maintain licensing. Club owners and managers must also be licensed and are held to the same standards. It would be naïve to assume that strip clubs do not have similar power dynamics to other workplaces: the boss holds nearly all the power and the workers are largely at risk of discipline or repercussions for speaking out or raising concerns in the workplace.

In 2012, the City of Toronto reconsidered the regulations around licensing for adult entertainers, most significantly updating the “no touching” rule to be specific about areas of the body that were off limits. Ostensibly, these changes were to prevent people being fined if a dancer shook a hand of a client or engaged in another form of casual touching.

The city attempted to consult with dancers by mailing all registered dancers surveys on the changes and on sexual assault in the workplace. Many dancers use their club address and not their home address in licensing, and so many of these surveys were delivered to their workplaces. In an article in Now Magazine, one dancer describes how management collected surveys from dancers and filled them out on behalf of the dancers. When she questioned her boss about how he would fill out the sections on sexual assault, he explained that the city did not care about the dancers’ working conditions and was only looking for a way to shut down clubs.

The dancer, however, goes on to illustrate that there was a stark difference between the surveys submitted through management, where only 2 per cent of respondents said they had been sexually assaulted and the surveys submitted by dancers themselves, where 67 per cent identified being sexually assaulted.

Dancers, like many precarious workers, have very little power in their workplace. The vast majority of dancers are women and there are risks of violence in their work. Because of the organization of employers, through the Adult Entertainment Association of Canada, it is also safe to say that standing up for yourself in one workplace could lead to difficulty finding work elsewhere.

The objective employment conditions of dancers, however, are not much different than a slew of other precarious workforces: hotel workers, big chain retail workers, home care workers, and so on. But the moral issues that people have with sex work creates significant barriers to seeing resources allocated to ensuring that these workers have a voice in their workplace through a union.

Now that it looks like sex workers in a number of different workplaces may be able to work without the same fear of criminalization, the question of what role the labour movement can have in supporting these workers becomes more important than ever. Is this the kind of workforce that could benefit from one of Unifor’s community chapters? Can the community chapter model of organizing be used to as a means to organize specific parlours or clubs?  Can feminist union members who support sex workers push our unions to invest in organizing this feminized workforce? Can we use what we’ve learned from hiring halls, organizing other supposed contract workers like taxi drivers or couriers, and feminist community organizing to actually build workplace power amongst workers in sex industries?

It’s not like it hasn’t been done. Workers at the Lusty Lady, a peep show establishment in San Francisco, organized under the Service Employees International Union in 1996. In Australia, the Striptease Artists of Australia was formed in 2002. In New Zealand, UNITE has organized some sex workers.

In some countries, including the United Kingdom, Germany, Australia and the Netherlands, sex worker rights organizations and advocacy groups have worked with labour unions to strengthen the legal protections sex workers are entitled to. These formalized relationships could be something for sex workers and their allies to explore in the coming months. But it does require that the labour movement be open and willing to work with sex workers, to recognize that sex work is work, and to be willing to defend the rights of these workers in the face of moral panic.

As a feminist and as a proud union member, the important question for me is do we want to ensure that sex workers have power in their workplace or not. I want sex workers to be able to stand up to violence, to refuse unfair work, to have access to benefits and job security, the very protections that most union members have.

*A note on language: in discussing the legal decision, I have used the term prostitution to describe a certain type of sex work. In referring to people working in the sex trade, I have used the terms sex worker and sex work to describe the a more broad set of occupations including, but not limited to adult entertainers, escorts, domanatrixes, and massage parlour workers. For a full explanation of the language around sex work, see this resource prepared by Stella, a sex worker organization in Montreal.