An Ontario Superior Court justice has dismissed a constitutional challenge to Canada’s sex work laws, saying that the Protection of Communities and Exploited Persons Act (PCEPA) does not violate sex workers’ Charter rights.
A coalition of 25 sex workers’ rights groups organized a challenge to the legislation, arguing that sex workers are harmed by the partial criminalization of sex work. Anti-prostitution groups argued that the law discourages men from buying sex and reduces commercial sex, in line with the goals of the Nordic or Equality Model of sex work.
The judge ruled that while he believes the laws don’t violate the Charter — which is what he was asked to rule on — regulation and decriminalization might be better policy options. But, he wrote, it is up to Parliament to make those decisions, not the judiciary. And it is about time the government did so.
Canada’s laws on sex work
The current law was developed by the Conservative government of Stephen Harper. PCEPA makes buying sex illegal while selling sex is legal in some circumstances. This asymmetrical model still leaves sex work in a legal grey area because one side of the transaction is legal and the other is not.
Much research has been done on the benefits of decriminalizing sex work, including work done by Amnesty International and Human Rights Watch. These are not fly-by-night organizations. They based their stance on solid research about the harms of criminalization. They are against trafficking and against the abuse of sex workers and they have policies against both.
There is also the example of New Zealand, which has decriminalized sex work and uses health and labour laws to regulate the industry. I won’t reiterate the arguments here in favour of decriminalization because there is so much research already out there.
What I want to discuss in this article is the very conservative (perhaps unconscious) sexual beliefs that underlie many people’s negative view of sex work. The issue is a complicated one, and I recognize how it can be easier to believe that all female sex workers are victims and all male clients are predators, instead of taking a more nuanced view.
That was certainly my opinion before I did interviews with working escorts. Meeting women who sell sex and do so with respect and dignity changed the way I viewed sex work.
Conservatism and sex
Sex has historically been separated into “good sex” and “bad sex” because of what is called the heterosexual conjugal bond, or more colloquially, traditional marriage. Those who defined what was good and bad sex were often men.
Traditional socially conservative views see acceptable sex as being with one person, only after marriage, heterosexual and relational, meaning that even masturbation was taboo. Scholars have outlined the detrimental effects of the heterosexual conjugal bond on women and sexual minorities.
Canada has liberalized its laws significantly since the 1960s sexual revolution. Gay sex, premarital and extramarital sex and polyamory are more acceptable than they once were, but the vestiges of this conservative ideology remain. Recent protests against sex and gender identity education in the school system illustrate this.
Most feminists would reject the idea that they are complicit with ideas that harm women or LGBTQ+ people because they have no problem with gay sex, premarital sex or extramarital sex. But anti-prostitution activists draw the line at commercialized sex for essentially moral reasons. Sex work remains bad sex.
As the director of an anti-trafficking group said to me:
“I don’t believe that every aspect of being a human being can be reduced to labour, to work. I think human sexuality is that part of ourselves, that part of being human that should not be for sale, should not be turned into a commodity that can be bought or sold, so on that front we don’t recognize sex as work so we don’t call anyone a sex worker.”
In this view, sex should not be commercialized. And to many people that is common sense. If you are raised in any kind of organized religion, you are likely to believe that sex is special and should be limited to heterosexual marriage. But that is a moral argument based on personal views of sex, and not necessarily what we should base public policy on.
The value of sex work
The sex workers I interviewed saw the value in sex work. They felt they were helping people, and providing a service and giving others pleasure was a part of that.
This is vehemently rejected by anti-prostitution activists. As one such activist told me:
“If you are disabled or in some way unable to have a normal, sexual relationship with another person, so you think that the right way is to buy it? Well, my answer to you is that unfortunately due to your illness and your disability you cannot have sex with another person.”
So those who might have problems accessing sex because of disability, age or physical attractiveness are simply out of luck.
But if there are women and men who get meaning out of their sex work and see value in what they do, why are we preventing them from doing this work? Why are we creating laws in a way that makes it less safe for them to do so?
If anti-prostitution activists don’t acknowledge that many women do choose to engage in sex work, they are denying the agency those women clearly have and this speaks to a paternalism and saviourism that needs to be faced.
Protections must, of course, be in place for those who don’t consent to sex work and harsh penalties should be taken in place for traffickers. But we do not need to criminalize consenting adults and their expressions of sexuality. We already have laws against sexual assault, trafficking, force, fraud and coercion. We should not want personal morality and religious beliefs being imposed on our public policy.
Many women can and do sex work with respect and dignity. Governments should be looking at those conditions and ensuring that those who sell sex, female and male, cis and transgender, are doing so under the safest possible conditions.
Whether it is a co-op brothel, as was tried in British Columbia, or women working together in their homes or working online, there are many ways to work safely. New Zealand has shown through their health and safety regulations how governments can make sex work safer. If the current courts are unwilling or unable to make sex work safer, then Parliament needs to do so.