An intersectional, human rights approach to sex work advocacy

Introduction

Hi, I am Simone, the new Staff Lawyer and Campaigner at Pivot, and we’d like to reintroduce the sex workers’ rights campaign. Pivot’s sex workers’ rights campaign is grounded in a rich tradition of movement-led organizing for systemic change, led by community members that face varying levels of economic and social exclusion. Historically, Pivot has been at the forefront of many constitutional challenges affecting sex workers’ rights to life, liberty and security of the person. We want to continue that tradition while recentering the vantage point of our work around sex workers’ experiences of criminalization, racialization and continued economic exclusion from labour and other forms of economic security. For this re-introductory blog, we want to reflect on some of our earlier community-based work to see where we have been, and better position ourselves to recenter our ongoing work around the voices and experiences of sex workers who have been systematically marginalized under systems of race, class, disability, heteropatriarchal capitalism and other structures of inequity.

The origins of Pivot’s sex workers’ rights campaign in response to gender-based violence in Vancouver’s Downtown Eastside

Pivot’s history of strategic litigation and advocacy in the service of sex workers’ rights has always been deeply interwoven with community organizing on the ground and has involved coalition-building with historically marginalized groups. We cannot properly push liberation struggles forward without looking back at where Pivot’s activism in sex workers’ rights found its footing. One of the most significant and pressing issues to gain national attention is the prevalence of gender-based violence and more specifically, the epidemic of missing and murdered Indigenous women, girls, and 2-spirit communities. In response to the widespread legal indifference to these harms, Indigenous women and community organizations began hosting a memorial march on Valentine’s day as a non-violent action and commemorative practice to honour the lives of Indigenous women and people across B.C. and to demand action to address the increasing pattern of violence dating back to the 1970s.

The governmental inquiries into the epidemic of violence against 2-spirit, trans, and cisgender Indigenous women remains deeply interconnected with questions around adequate policy responses to sex work, as some of the violence was inflicted on Indigenous peoples involved in the sex trade. It was not until 1998 that the provincial government began investigating some missing Indigenous persons cases, which eventually led to the 2002 arrest of white farmer, Robert Pickton. In 2010, BC’s Missing Women Commission of Inquiry led by Commissioner Wally Opal was established and resulted in a final report documenting police inaction in the face of these egregious patterns of violence and the need to implement systemic policy change to address ongoing violence.

Pivot’s sex workers’ rights campaign was borne out of an affidavit-gathering project that launched in 2003 in response to this epidemic of violence against Indigenous women, which was rooted in white racial patriarchal violence against street-based sex workers in the Downtown Eastside. It goes without saying that the Downtown Eastside has predominantly been known as a racialized space for people marginalized through intersecting systems of colonialism, racism, classism, and ableism related to mental health. To put it concretely, folks in this well-known public space have been subjected to intergenerational cycles of violence, structured primarily by social exclusion, poverty, and a poisoned drug crisis. The region also houses Vancouver’s Chinatown and is considered one of Canada’s largest urban cities, with one seventh of the population identifying as Indigenous.

Pivot subsequently began meeting with women concerned with the egregious violence enacted largely by white men, to learn about how the then prostitution laws and state-led responses to racist violence, made it nearly impossible for sex workers to protect themselves. Pivot’s work was simultaneously organized around building collective knowledge and local resistance to state-imposed living conditions of people in this racialized sphere of Vancouver. Pivot’s advocacy alongside sex workers in the Downtown Eastside provided a space to interrogate the interlocking systems of oppression that constrain Indigenous, Black, and Asian lives, namely through systems of structural poverty, homelessness, criminalization, and the poisoned drug supply crisis.

Pivot’s positionality in sex work advocacy pre- and post-Bedford

While selling sex has never been illegal in Canadian law, nearly all of the activities, environment and working relationships are criminalized under the current sex work-related legal regime. Decriminalization therefore became the central theme of Pivot’s sex work campaign, meaning that campaigners and advocates alike championed the repeal of criminal laws and administrative rules that effectively target indoor and street-based sex work. This necessarily shifted the nature of the work from direct actions and organizing in the streets to court challenges and parliamentary interventions largely led by white women and men lawyers.

Recognizing the inherent and continued harms of Canada’s sex work laws, a group of sex workers involved in the earlier affidavit project sought to continue to advocate collectively for full decriminalization of sex work. This group eventually formalized into the Downtown Eastside Sex Workers United Against Violence, a peer-led sex worker organization. At various points, between 60-80% of the group’s members identified as Indigenous women. Pivot later represented the group in their constitutional challenges to Canada’s prostitution laws, in both Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 as an applicant, and in Canada (Attorney General) v. Bedford, 2013 SCC 72 as an intervenor. The SWUAV decision resulted in clear wins for sex worker-led organizations, and social movements more generally, seeking justice through Charter challenges, in that the Supreme Court of Canada reiterated that public interest litigation is an appropriate means by which to bring matters of public importance before the courts, particularly where a law is being challenged by, with or for members of historically marginalized communities.

By 2012, the Bedford v Canada case was well underway in Ontario. Black dominatrix Terri-Jean Bedford, alongside sex workers Amy Leibovitch and Valerie Scott led the constitutional challenge to the prostitution laws that existed at the time, with the objective of decriminalizing sex work as part of a concerted effort to address the gendered violence against women involved in the sex trade. Pivot in coalition with PACE Society and SWUAV first acted as intervenors at the Ontario Court of Appeal, and later at the Supreme Court of Canada (SCC). The Bedford decision resulted in a unanimous ruling on the unconstitutionality of the sex work-specific provisions of the Criminal Code, and the SCC struck down the provisions relating to communicating for the purposes of selling sex, keeping a bawdy house and living off the avails of prostitution. The sitting Conservative government at the time of the decision responded to the court’s direction to replace the infringing laws by enacting new legislation, Bill C-36, the Protection of Communities and Exploited Persons Act. This legislation was equally harmful to sex workers, this time under the auspices of addressing the exploitation claimed to be inherent in sex work and seeking to end the demand for the sale of sexual services by punishing clients and third parties under a Nordic model.

In 2018, Pivot, alongside the Sex Workers United Against Violence, PACE Society, and WISH Drop-In Centre Society, later supported the work of Vancouver Sex Workers’ Rights Collective, a diverse group of Indigenous peoples working in the sex trade in the context of the National Inquiry into Missing and Murdered Indigenous Women and Girls. At the same time, there are valid critiques of the involvement and organizational cooptation of Indigenous and Black-led sex worker movements. Part of the significance in situating Pivot’s work within the context of racialized colonial violence is that it allows us as an allied organization to reflect on what it means for other legal advocacy groups who are traditionally white-led, to decolonize and displace their institutional power by sharing capacity-building skills that can sustain organizations beyond fights for equality within colonial courtrooms and support individuals and sex worker communities who are directly impacted by the daily lived realities of continued state violence.

Reintroducing Pivot’s approach to sex work advocacy

As we know Indigenous, Black, and racialized sex workers enter and continue to engage in sex work because it often provides people with opportunities to transcend conditions of low wages and precarious work in a society that is structured around pervasive race, class, and gender-based hierarchies. An intersectional decolonizing approach allows us to address this material reality, while acknowledging the agency of sex workers in choosing an option that affords them greater flexibility, job security, and independence from racist, patriarchal and ableist workplace environments. Research suggests that through sex work, Indigenous, Black, and racialized women do access a considerable degree of power, happiness, social mobility, and an improved quality of life that could not be realized through more traditional avenues of minimum wage work. As we continue to grapple with the pressures of increasingly repressive state institutions, that target and surveil racialized sex workers through criminal charges and administrative legal systems, family policing, immigration barriers and other bureaucratic agencies, it is important to define what is meant by an intersectional, human rights approach to sex work advocacy.

An intersectional human rights-approach to sex work is necessarily anti-colonial.

Many historically marginalized communities have a deeply fraught relationship with human rights principles and discourse because they have been defined within a neoliberal paradigm that privileges conceptions of human rights as negative rights, and which do little to displace the existing socio-economic and political status quo, resulting in racial and economic subordination of Black & Indigenous communities in Canada. Most recently, we have seen and written about the implications of rising police budgets in cities across Canada amidst government cutbacks to social programs and judicial decisions reiterating profoundly narrow understandings of the state’s role and responsibility in remedying social inequalities.

At the same time, we have seen various Indigenous, Black, and feminist activist scholars advance the significance and urgency of embedding human rights and legal traditions with worldviews, which reclaim the socialist underpinnings of human rights. A human rights-based approach ultimately centers claims for individual and collective entitlements to adequate standards of living, such as affordable housing for all, access to childcare and livable wages, progressive drug policy, and the eradication of poverty, stigma and discrimination, the essentials for maintaining one’s health, safety, wellbeing and overall quality of life. Further, intersectionality at its core recognizes that state and interpersonal violence are not evenly distributed, but rather that they must be understood at the intersection of racism and sexism into Black and racialized women’s lives in ways that cannot be fully appreciated by looking solely at one axis of oppression, and additionally, that class and sexuality are often just as significant in shaping their experiences. In fact, intersectionality began as a framework for understanding and addressing violence against women of colour, and therefore provides an appropriate lens to approach advocacy in the sex workers’ rights space.

Challenging the colonial roots of carceral approaches to sex work regulation

Addressing the criminalization of sex worker communities necessarily requires interrogating the role the state has played historically in creating and maintaining racial otherness, including through laws enacted as a means of regulating communities of colour, and effectively, quelling resistance to ongoing white colonial violence. Recognizing this historical context is essential for understanding the broader criminalization of race and poverty that continues through the prosecution of a range of criminal and provincial offences that are used to contain, control, and punish people. This includes laws against drug use, anti-poor legislation and other offences that target people who rely on public space and those working in survival economies like street-based sex workers, and laws that deepen racial inequalities and class-based oppression against poor people, Black and Indigenous peoples.

Addressing the criminalization of sex worker communities necessarily requires interrogating the role the state has played historically in creating and maintaining racial otherness, including through laws enacted as a means of regulating communities of colour, and effectively, quelling resistance to ongoing white colonial violence.

The current criminal code offences continue the trajectory of colonial repression and racial subordination over Indigenous, Afro-Indigenous and Black people, embedded within slave codes enacted in the U.S., Caribbean and French colonies used to maintain and control the mobility of enslaved Black populations. Similar to the sex work-specific laws that prohibit certain relationships and prevent sex workers from working in public space, the slave codes often required that Black people obtain permission when leaving plantations and effectively, sought to regulate the mobility, agency, and self-determination of communities in racialized spaces.

Similarly, the criminalization of Indigenous women and peoples through the law dates back to the introduction of the Indian Act, 1876 which expanded colonial domination over First Nations communities and regulated nearly every aspect of Indigenous life. Historian Lesley Erickson documents how prostitution involving Indigenous women was legislated as a specialized category of crime, and that amendments to the Indian Act created prohibitions against white settlers interacting with Indigenous women in their homes or on their property, while unjustly criminalizing Indigenous people for keeping or being found in bawdy houses.

The Indian Pass System, enacted by the federal government in 1885 and modeled after slave codes, provides another example of colonial efforts to control and contain the mobility and sovereignty of Indigenous peoples. The dominant colonial discourse at that time utilized notions of Indigenous women as “immoral”, and “corrupting influences” alongside discourses of “prostitution” to justify whose movements could be restricted through this system as a disciplinary regime for Indigenous peoples. The Indian Pass System was therefore rationalized as a program to contain Indigenous communities and women who were presumed to be prostitutes to Indian or racialized spaces, and to keep racialized folks away from urban centers that were deemed to be spaces of white respectability.

The sex work laws and the resulting criminalization of clients and third parties, and the prohibition of sex work in public space perpetuates the harmful impacts of criminalization that Black, Indigenous and Asian migrant communities have long been subjected to. The carceral approaches embedded within current laws and policy approaches to sex work regulation, merely extend these historical colonial practices. Further, folks living in poverty, trans people, and Black and Indigenous sex workers have historically been subjected to the most harmful and continuous forms of police harassment, targeting, surveillance and violence through various forms of street-checks, municipal regulatory enforcement, and unlawful arrests and workplace raids that have far reaching impacts on the lives of sex workers depending on the race, class and immigration status of sex workers. There is therefore an urgent need to displace policing as a response to poverty-related and social issues, amidst the ongoing expansion of colonial systems of regulating and containing racialized bodies.

Moving towards an intersectional, human rights-based approach to sex work advocacy that centers the lived experiences of sex workers

There is rich tradition of feminist scholars that advance decolonial approaches to sex work law reform. As recognized by Professor Sarah Hunt, among others, a decolonial lens to sex work advocacy underscores the ways in which colonial sex work laws undermine the sovereignty that Indigenous peoples exercise over their bodies and, by extension, over their lands. Professor Hunt situates sex work as part of the intrinsic agency and self-determination of Indigenous women, despite Canada’s ongoing colonial relationship to First Nations. Elsewhere, Hunt has written with Indigenous lawyer Naomi Sayers, and they have argued that “recognizing and respecting the agency of Indigenous women to choose sex work alongside the decriminalization of prostitution and its protection as a legitimate form of work will help end colonial domination and contribute to more safety for those who choose to be involved in the sex trade”.

We know that the law has always promised legally sanctioned violence against Indigenous and Black communities, namely interpersonal and structural violence subjecting women racialized as Indigenous and Black to harassment, discrimination, hyper scrutiny in public spaces, police profiling in the streets and arrests under the assumption that they might be involved in the sex trade or other criminalized activity. Within this context, violence against Indigenous, Black, and racialized peoples is expected, and yet made invisible, and this has especially been the case in the context of missing and murdered Indigenous women, girls, and 2Spirit folks, where policing and legal responses have led to systemic inaction in relation to the deaths and disappearance of Indigenous community members.

An intersectional human rights-approach to sex work is necessarily anti-colonial. At its core, situating sex work in relation to colonialism is inherently about building a framework that centers the unceded territories now occupied by whites, the theft of Indigenous lands and the related displacement of First Nations communities to spaces which are bound up with dehumanizing narratives about the inherent degeneracy of racialized others. By extension, an anti-colonial framework allows us to see how public space becomes increasingly fraught with tensions and white, middle-class anxieties about racialized and poor people taking up traditionally white space, albeit on stolen lands. Within this context, racial and class-based tensions arise, and elites respond by implementing policies and legal responses to establish morality and to regulate, police and repress communities who transgress the boundaries of whiteness.

What’s Next

As Pivot continues to rebuild the relationships we have historically held with sex worker-led groups in the Downtown Eastside, we seek to co-build processes for meaningful consultation to inform new programmatic priorities for our campaign, and to elucidate the lived realities relating to the barriers to advancing sex workers’ rights, and access to social services.

Some ways community members can get involved:

1. Connect with us through our social media and look out for new publications and developments in legal cases that impacts sex workers’ rights;
2. Get involved with sex worker-led groups and the co-development of know your rights public education and resource materials;
3. Stay tuned for our upcoming strategic litigation and intervention work.

Works Consulted

1. Golkar, Niloofar, A Roundtable on Sex Work Politics and Prison Abolition with Elene Lam, Chanelle Gallant, Robyn Maynard and Monica Forrester, (2016) 18 Upping the Anti: Journal of Theory and Action, available online: https://uppingtheanti.org/journal/article/18-sexworker
2. Bourgeois, Robyn, “Race, Space and the Making of Settler Colonial Canada” (2018) 30:1 Canadian Journal of Women and the Law at 371, available online: https://www.powerottawa.ca/wp-content/uploads/2019/09/Bourgeois-2018.pdf
3. National Inquiry into Missing and Murdered Indigenous Girls, Reclaiming the Power and lace: The Final Report of the National Inquiry Into Missing and Murdered Indigenous Women and Girls, (2018), available online: https://www.mmiwg-ffada.ca/final-report/
4. Oppal, Wally, Forsaken, The Report of the Missing Women Commission of Inquiry, (2012), available online: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/inquiries/forsaken-es.pdf
5. Holmes, Cindy, Hunt, Sarah & Amy Piedalue, “Violence, Colonialism and Space: Towards a Decolonizing Dialogue” (2015) 14:2 An International Journal for Critical Geographies 539, available online: https://acme-journal.org/index.php/acme/article/view/1102/992
6. R v Sharma 2022 SCC 39.
7. Borrows, John, “Heroes, Tricksters, Monsters and Caretakers: Indigenous Law and Legal Education” (2016) 61:4 McGill LJ 795. See also David Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights (Vancouver: UBC Press, 2012).
8. Hunt, Sarah, “Decolonizing Sex Work: Developing an Intersectional Indigenous Approach” in Selling Sex: Experience, Advocacy and Research on Sex Work in Canada
9. Crenshaw, Kimberle, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Colour” (1991) 43:6 Stanford Law Review 1241.
10. Hunt, Sarah & Cindy Holmes, “Everyday Decolonization: Living a Decolonizing Queer Politics” (2015) 19:2 Journal of Lesbian Studies 154: for a fulsome discussion of decolonial politics in the context of friendships, families, partnerships, and organizing on unceded Coast Salish territories.
11. Smith, Molly & Juno Max, “Revolting Prostitutes: The Fight for Sex Workers’ Rights” (2018).
12. SWUAV and Pivot Legal Society, ”Know your rights: Canada’s sex work laws“ (2013), available online: https://www.pivotlegal.org/sex_work_rights_cards