On December 20, 2014 the lives of sex workers in Canada will change dramatically, but there isn’t a sex worker, lawyer, or politician who knows exactly what this change will look like. After the landmark Supreme Court decision that struck down three provisions of the Criminal Code’s sex work legislation, all that’s sure is that one year from the date of the ruling the provisions will lapse, regardless of whether or not new viable legislation has been drafted.
This unanimous ruling was the outcome of the Bedford v. Canada case. The case was brought forward by former and current sex workers Terri-Jean Bedford, Valerie Scott, and Amy Lebovitch, on the grounds that Canadian sex work legislation needlessly endangers sex workers and violates their rights under section 7 of the Canadian Charter of Rights and Freedoms. The Court’s decision gives the federal government one year to draft new legislation if it wishes, leaving a range of possible outcomes from complete decriminalization to outright re-criminalization.
The case and its supporters
The case challenged three provisions of the Canadian Criminal Code. The first, section 210, is the “bawdy house law,” which prevents the owning, managing, or occupying of a “brothel.” This provision makes it illegal for a sex worker or a third party to own or rent premises used for prostitution. For sex workers, that means it is illegal to work from home or from another fixed location, and often means working on the street – in isolation – or in an unsafe location.
The second law challenged is section 212(1)(j), ‘living on the avails.’ Otherwise known as ‘the pimping law,’ this provision prevents any third party from profiting off of another person’s sex work. Intuitively this law may seem to be in a sex worker’s best interest as it prevents a ‘pimp’ from taking an unfair cut of the sex worker’s earnings; however, it also makes it illegal for a sex worker to hire any sort of staff, including body guards or drivers.
The third challenged law is section 213(1)(c), the “communication law.” This provision prohibits any communication for the purpose of sexual services for money in public, and makes it illegal for a sex worker to negotiate the terms of service, such as condom use, or to consent to specific sexual acts.
Lebovitch, a current sex worker and Executive Director at Sex Professionals of Canada (SPOC), was a primary participant in the Bedford v. Canada case. I spoke to Lebovitch by phone about her reaction to the decision and her hopes moving forward.
“Ideally there wouldn’t be new legislation,” she said. According to Lebovitch, letting the laws in question lapse would increase the ability of sex workers to work safely. “We would be able to work in groups, we could work inside or on the streets, we could hire drivers,” she explained.
Quebec Trans Health Action (ASTT(e)Q) is a Montreal-based organization that helps connect trans* people with healthcare, social services, and other resources. I went to their office near Berri-UQAM to interview Peer Project Manager Betty Iglesias about how the Bedford ruling could impact the organization’s work. “Sex workers eliminating these [legal] barriers can improve their safety,” explained Iglesias. She added that many sex workers prefer to work from the safety of their homes or hotels, which is illegal under the “bawdy house law.”
There is a diverse narrative surrounding sex work and prostitution. For some, it is an occupation like any other; for others, always a form of violence against women. According to Lebovitch, absolutist ideas about the impact of sex work cover up the voices of sex workers themselves. “[Calling prostitution violence against women] names the experience for us without asking us,” she said.
Iglesias agreed with Lebovitch that not all sex workers are victimized by the industry. “Some sex workers […] love what they do. They make their own independent business, and that helps them feel more confident, and [raises their self-esteem].”
Iglesias also noted that the discourse around sex work should not be limited to women as sex workers and men as clients. “We should understand that sex work is not only for women.”
Opposition to the ruling
Those who see sex work as violence against women, however, feel that the path most women take to working in the industry makes their argument impossible to ignore. I spoke on the phone with Yuly Chan of the Asian Women Coalition Ending Prostitution (AWCEP), an organization that intervened in the Bedford case, about the coalition’s perspective on the sex industry and the ruling.
“There are certainly women who do enter prostitution by choice, but I think it’s actually a very small amount of people. To have such a small minority of women in prostitution represent the majority who are […] forced into prostitution is unfair.” Chan also highlighted the role of the sex industry in perpetuating racial stereotypes and inequality. “Prostitution is very profoundly racist and sexist and it impedes not only Asian women but all women of colour, and Aboriginal women in particular. It really […] prevents us from living a full and meaningful public life.”
According to online information by the Native Women’s Association of Canada (NWAC), Aboriginal women are disproportionately involved in sex work and experience extreme levels of violent assault and murder in the industry. The association’s official position on sex work reads, “Aboriginal women will mostly remain on the street because racism and poverty select them for the most exploitative forms of prostitution.”
In a press release following the ruling, NWAC expressed a similar view to AWCEP regarding the impact of sex work on racialized groups.
“The NWAC is very disappointed with [the Supreme Court decision] as it fails to protect Aboriginal women and girls who are among the most vulnerable population in Canada […] The state has pushed Aboriginal women from one institution to another – residential schools, foster homes, group homes, and prisons, to name a few. NWAC refuses to accept brothels as the new official institution for Aboriginal women and girls, and we refuse to accept that prostitution is the solution to addressing women’s poverty.”
When I contacted the Pauktuutit Inuit Women of Canada and, they did not comment on the implications of the Bedford v. Canada case specifically, but did express concern about the way Inuit women can find themselves working in the sex industry. “We hear many women who are engaged in the sex trade do not do so voluntarily. Rather, many women come to urban areas to escape poverty, violence, and other personal circumstances and far too often find themselves isolated and marginalized, which puts them at great risk of and vulnerability to exploitation,” the organization said in an email.
Chan explained that AWCEP uses specific terminology to reflect their views. “We don’t actually use the term sex worker […] because we don’t think that prostitution should be considered a valid occupation at all,” explained Chan. “If it really was a job, then the highest earner in this so-called occupation would be the more experienced women. In Canada, it’s actually the 12- to 13-year-olds who are making the most money. That just shows you the inequality that is inherent in prostitution.”
With organizations that are concerned for the safety of sex workers both supporting and opposing the outcome of the Bedford v. Canada case, is it possible for the government of Canada to draft legislation that respects the rights of sex workers to work safely and openly while still addressing concerns about vulnerable populations in the sex industry?
The Nordic model
While it is hard to predict what the next year will entail in terms of sex work legislation, one option has received a significant amount of attention and discussion: the Nordic model. Currently in place in Sweden, it is illegal under this model to purchase sexual services, but it is not illegal to be a sex worker. The Nordic model is the favourite of many groups who see sex work as violence against women, including the NWAC and AWCEP.
In the interview, Chan advocated for the Nordic model, citing recent improvements in Sweden. “Ten years after they implemented the Nordic model […] about half [of street prostitution] was cut,” she said. “They had fewer men report the purchase of sexual services. It not only criminalizes the men but it also minimizes the invisibility […] and more importantly it doesn’t criminalize women at all.”
AWCEP’s reasons for supporting the Nordic model are popular ideas in the current discussion about sex work legislation. It sounds appealing to have a system that doesn’t criminalize sex workers, where sex workers are off the street, and where the popularity of the ‘victimizing’ sex industry is waning; however, research shows that faith in the Nordic model is likely misplaced.
I reached out to Sandra Ka Hon Chu, Co-Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, to find out more about her research on sex work legislation. The Network intervened in the Bedford v. Canada case, relying in part on Chu’s work.
In a phone interview, Chu explained that there are many common misconceptions about the effectiveness of the Nordic model. “The research has shown that the Nordic model actually replicates all the harms that the current framework produces.”
She argued that the decrease in visible street prostitution can be explained by clients’ fear of arrest. “Even though [only] clients are reportedly criminalized, sex workers are moving to isolated locations with clients because that’s where [sex workers] have to go to find them. There’s fewer clients that are safe, [and] there’s less time to negotiate what services you want to provide upfront.”
“The research has actually shown that, since the passage of the Nordic model – because prior to [the implementation of the Nordic model] in Sweden sex workers were not criminalized – they are less able to go to the police because the police might want to use them in a criminal case against their clients,” said Chu. “So sex workers are not going to go to the police under the Nordic model, even if they’re not directly criminalized.”
When I asked Lebovitch for her take on the Nordic model, she had similar concerns. “I think people really need to look into the Nordic model and what’s happening in Sweden and other countries where it’s been implemented,” she said. “When people criminalize our clients, they are criminalizing us.”
Chu and Lebovitch’s comments allude to the possible reasons why fewer clients would report using sexual services under the Nordic model, as Chan suggested. A reduction in reports of an activity after it becomes illegal does not necessarily mean a reduction in the activity itself.
Chu’s research suggests that, while the Nordic model may be superficially appealing to those who wish to keep sex workers safe by abolishing the sex industry, it does not actually serve the interests of sex workers, whether they are in the industry by their own choice or through coercive circumstances.
“In New Zealand sex work has been decriminalized for over tenyears now and the sky hasn’t fallen in,” said Chu. “Sex workers feel more safe to work, they feel more of a sense of empowerment, [and] they’re able to go to the police [...] [It] works really well, yet there’s less discussion of it [in Canada].”
Chu argues that the acceptance of sex work as a profession under occupational health and safety regulations has been successful. “Rates of HIV [in New Zealand among sex workers] are lower than the general population because sex workers are experts on their sexual health.”
When asked about her views on the legislative future for sex work in Canada, Lebovitch agreed with Chu. “Ideally, there wouldn’t be new legislation,” she said.
Given that NWAC and AWCEP do not support the decriminalization of sex work because of the coercive ways many end up in the industry, I asked Chu about the possibility of bridging the legislative gap between sex workers who enjoy and want to continue their work, and those who are there due to force or necessity.
“We have strong anti-trafficking provisions in the Criminal Code that no one was trying to repeal. I think what sex workers have argued – and they’re right – is that it’s better decriminalized. Sex workers are able to go to the police if they notice someone [they suspect is being] trafficked,” she said. “Prior to the Nordic model, clients [in Sweden] would even go to the police and report trafficked sex workers, and now they don’t do that because they could get thrown in jail.”
“When you set up this really antagonistic relationship between the police and sex workers, then trafficking just gets driven underground. [The Nordic model] is not actually a way to expose it,” she added.
Ultimately, in order to create a system that best serves the needs of sex workers, the voices of sex workers must be at the forefront. “Sex workers needed to be consulted in law reform,” argued Chu. “They are the experts in their health, safety, and what’s important for their human rights.”
Even if sex work and related actions end up completely decriminalized, we have a long way to go if we want to ensure that Canadian sex workers have safety and respect. Poverty, unemployment, stigma, and police violence are issues that are not directly addressed by sex work legislation (or lack thereof).
As mentioned by the NWAC, AWCEP, and Pauktuutit, certain populations within Canada are especially vulnerable to being pushed into sex work for reasons other than personal choice. When I sat down with Iglesias at ATT(e)Q, she explained the ways that sex work intersects with the struggles of trans* people, immigrants, and people of colour.
“Most of the population of trans women are unemploy[ed] or underemploy[ed].” She argued that workplace ignorance makes it difficult to maintain work while transitioning, explaining, “I haven’t known somebody who has finished [their] transition, and during this time not been fired.”
Iglesias also maintained that immigrants and refugees, too, may face hardships that make traditional employment difficult. “We have people from Asia, the Middle East, Latin America, [and] African countries who come [to Montreal and the rest of Canada]. Sometimes, they [have] difficulties getting a job. Why? Because of their language, because they’re trans*, [because] they’re a woman or a man of colour.”
Although outreach groups can provide support and materials to trans* sex workers, “we cannot keep them safe from the violence,” added Iglesias.
Regardless of the legislative changes that will occur in the next year, the relationship between sex workers and the police remains critical. When discussing how Canada should move forward after the ruling, Lebovitch argued that trust in the police is important to the safety of sex workers.
“There has been a lot of oppression [of sex workers] at the hands of the police in the past, and still today […] Ideally, we would feel safe contacting the police if a situation were to arise where we needed them.”
Iglesias explained that in order for trans* sex workers to be comfortable going to the police, we need to deal with the structural violence and stigma they face both as trans women and sex workers. “[Sex workers who are trans women] find violence from their partners, some clients and often police […] A woman identifies as trans* but [the police officers] use male pronouns, they are violent, they don’t respect them. Trans women – what they face is trauma, what they face is low self esteem, after they are arrested for sex work.”
Moreover, said Iglesias, immigrant sex workers who do go to the police with issues are at risk of deportation. These people may be persecuted in their original countries for being trans*. “Sometimes, we receive bad news when they go back to their origin countries,” she said.
That being said, Iglesias does not think the challenges ahead should detract from the meaningful achievements embodied by the ruling. She felt optimistic when she went to a recent conference about the Bedford v. Canada case.
“When you see people fighting for their rights for 30 years and never being heard […] when they start demonstrating and demonstrating […] to finally come to this moment – it is changing the lives of many people,” she said with a tentative smile.