Sex work is an LGBTQ Issue

Sex workers have been a long standing, and often erased, part of the LGBTQ community. Sex work has offered a life line for those marginalized to not just survive but thrive, formed the backbones of nascent organizations and a sub-community for many who have been invisibilized by respectability politics. It is important to look at sex work and its place within the LGBTQ community and in the history of LGBTQ liberation. For an issue which encompasses issues of economic justice, labor, criminalization and policing, sexuality, racial justice, immigration, gender identity and complex other frameworks, sex worker rights can be a lynchpin issue impacting the most marginalized in our communities. Caring about LGBTQ survival means caring about the lives, health and safety of sex workers.

Why is Sex Work an LGBTQ Issue?

Sex Work has kept us housed and fed in the face of discrimination and Oppression. Criminalization makes that survival harder.

With discrimination in jobs, education and services, poverty has long been a queer issue. The trans community are twice as likely to be unemployed compared to cisgender individuals. For homeless and housing unstable youth, the disparities are even more  pronounced, with some cities reporting that 40-50% of homeless young people reporting to be LGBTQ-identified.

Contributing to and exacerbating this economic disparity is the discrimination in traditional employment and social services. Ninety percent of the trans community report some form of harassment, mistreatment and discrimination in the workplace. One survey found that for homeless shelters, only 30% were open to housing transgender women, while structural barriers such as identification documents with different names and gender markers can make accessing to benefits and services even harder.

As a result, LGBTQ-identified individuals have often relied on sex work as a means of survival. The most recent Transgender Discrimination survey found that 11% of respondents report having done sex work. Broken down by race, the study found that 33% of Latinx respondents and 40% of black respondents reported participation in the sex trade. Homeless LGBTQ-identified youth are seven times more likely than heterosexual-identified peers to trade sex for a place to stay.

The collateral consequences of a prostitution arrest can also make access to resources and economic stability further challenging. A prostitution conviction can mean disqualification from public housing, deportation or the inability to adjust one’s immigration status, violating a code of conduct to lead to expulsion from higher education, civil consequences such as eviction or removal of children from the home, among many other collateral consequences.

Supporting the health and safety of those who trade sex will necessarily improve the well-being of members of the LGBTQ community, especially those most hard-hit by economic marginalization and injustice.

Criminalization of sex work promotes surveillance, policing and incarceration for LGBTQ individuals. [ix]

In the United States, prostitution, as well as all the mechanisms around that act, is fully criminalized in every state[x]. This is primarily defined as outlawing the exchange of sex for resources, with nuances as to what that encompasses as defined by different jurisdictions and local jurisprudence. As LGBTQ communities experience disproportionately higher levels of policing, prostitution laws are often a significant part of that over policing and incarceration. For youth, LGB young women are twice as likely and LGB young men are ten times as likely to be incarcerated in juvenile detention for prostitution charges, as compared to their peers.[xi]

Particularly harmful are laws against loitering for the purposes of prostitution. Evidence for arrest and conviction can include what a person is wearing, waving at cars, being in an area that law enforcement considers “known” for prostitution, or even having been arrested before – all of which being protected behavior in other contexts. Loitering for the purposes of prostitution has colloquially come to be known as “walking while trans,” because of the frequency with which trans women are subjected to their policing. During his time at the Sylvia Rivera Law Project, Dean Spade reported that 80 percent of the trans women of color he worked with “had experienced police harassment or false arrest based on unfounded suspicion of prostitution.” (Make the Road, 2012, p.13) This practice was further documented by Amnesty International in 2005 and again by Human Rights Watch in 2012.

Third-Party Laws are about destroying our tools to stay safe – like harm reduction and community

Criminalization of the sex trade also goes beyond simply the exchange, but through proxy laws such as soliciting, pandering, or promoting criminalize other sex workers, peers, family members and community support. As these laws are often over-broad and require no victimization, acts such as sharing information, driving someone to an appointment, or receiving rent money can lead to charges. Peer support and harm reduction techniques such as giving referrals for potential clients and acting as a bodyguard for one another become a misdemeanor or, in cases of youth, a felony.

Laws such as promoting prostitution can be used against one person who helps another by posting an advertisement, or acting as a booker to interface with clients. Pandering for the purposes of prostitution can, for example, criminalize information sharing about how to find clients between peers in similarly precarious life situations. For a community which has survived by relying on each other when the world has turned its back, these networks are put in jeopardy through third-party laws. Removing these support systems do not disincentivize someone from engaging in sex work, but instead force many to trade sex under worse and more dangerous circumstances.

LGBTQ people have been fighting HIV for decades. Criminalization of sex work compromises that fight.

The decriminalization of sex work is an essential element to the fight against HIV transmission. In the most extensive study available, decriminalization of the sex trade could reduce HIV transmission 33 – 46% across the globe within the next decade. Sexual violence, which is exacerbated by criminalization, poses a significant risk to the health and safety of those trading sex. In addition, when policing practices involve sting operations, negotiation of things like condom use become criminalized activities, and sex workers must either avoid those conversations or try and use vague references to try and avoid arrest.

The use of carrying condoms as evidence of prostitution, a policing practice which has been documented around the world, has led to sex workers in policed areas to not carry condoms, regardless of whether they were going to engage in sex work. In a New York City-based study on the issue, 75% of transgender women said they had not carried condoms for fear of arrest.

Sex workers are also disproportionately impacted by the implementation of HIV criminaliaztion law through mandatory felony upgrades for those who are arrested for prostitution-related crimes while HIV positive.

Sex work has always been part of LGBTQ history. It’s how we’ve cared for each other.

Many LGBTQ icons of history have used commercial sex to not only provide for themselves, but care for others in the community. Marsha P Johnson and Sylvia Rivera were outspoken sex workers who not only catalyzed the modern LGBTQ movement, but also founded STAR, Street Transvestites Action Revolutionaries. Just like so many of our organizations today, STAR was founded after a protest/sit-in in 1970. The group focused on street-based LGBTQ, but especially trans young folks. The group eventually opened the sex work-funded STAR House, the first LGBTQ-specific shelter in North America.

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[ix] Prostitution and loitering laws are one part of the larger fight against quality of life policing which targets and profiles people of color and other marginalized communities.

[x] In Nevada, prostitution is legal within a highly-regulated brothel system, which is only allowed to operate in specific locations. Working independently or outside of this system remains criminalized and as of this drafting, Nevada had the highest arrests for prostitution per capita in the country, at a rate of almost 10:1 to the second and third highest states.

Sex work is an Economic Justice issue.

The United States is a country rife with economic injustice. Commercial sex, as a low-barrier, informal economy which provides access to unrestricted resources. Many people who face a range of structural marginalization and inequity relay on the sex trade to make ends meet and provide.

LGBTQ individuals, and especially trans folks, face a range of barriers to formal employment and basic services. Almost 22% of LGBTQ individuals live in poverty – a combination of circumstances from abuse to discrimination which can span a lifetime. For trans individuals, that number is almost 30%. LGBTQ individuals are more likely to be pushed out by families and face discrimination and abuse at school, meaning that from youth, there are obstacles to economic stability. In June of 2020 the Supreme Court determined that it is a violation of federal law to fire someone for their sexual orientation, but problems still persist in implementation. In the National Transgender Discrimination Survey from 2015, almost 70% of people who had traded sex reported previous discrimination in the workplace. LGBTQ people also face discriminations in basic services such as homeless and domestic violence shelters and regularly encounter barriers to social services such as lacking documentation which reflects their name and gender identity or because of homelessness. For LGBTQ people of color, overlapping forms of structural violence and marginalization compound.

For people who are formerly incarcerated, people with disabilities, caregivers, students, substance users or people who face a range of other barriers, access to stable, living-wage employment can be challenging, if not impossible. The sex trade is one way that many people resist in the face of economic injustice.

Other forms of economic justice: resource redistribution, informal economies.

Sex work is both criminalized and regulated.

The exchange of sexual services for resources is criminalized in every state in the US, except for a small number of counties in Nevada where only brothel-based sexual exchange is legal. The United States’ approach to sex work is full criminalization, meaning the selling sex, buying sex, and all people and spaces which allow or facilitate commercial sex are all subject to criminal penalty.

This extent of criminalization also has a wide range of impacts beyond the process of arrest/charging/incarceration, including arrest records, bank accounts being closed for suspect of money laundering, child welfare and civil/family court proceedings, eviction when arrested in your home, deportation, and being barred from licensing for professions.

Women of color and/or trans experience are often profiled as engaging in commercial sex.

Beyond commercial sex which falls under prostitution, sex work includes many forms of legal and regulated labor which is not criminalized. Dancers/strippers are regulated through state and local law, and administrative regulations such as Occupational Health and Safety standards, and may have a range of employment statuses depending on the club. Porn performers and companies are regulated through state and local law which include stringent document retention, and may also have mixed employment status. Each area of the industry, and the diverse individuals who engage in it, all have unique needs and barriers.

Other industries with both regulated and criminalized arms: Substance/drug distribution.

Every state criminalizes all aspects of the sex trade. These laws generally fall into the same categories.

Loitering for the Purposes of Prostitution

Loitering for the purposes of prostitution is a profiling based crime based on what are typically legal activities, but interpreted by the arresting officer to be indicative of a person looking to engage in prostitution. Behaviors that have been criminalized under these laws include walking down the street, the style of clothing especially trans women wearing feminine clothing, having been arrested before for loitering and carrying condoms. Especially impacted are women of color and trans women, who are assumed to be engaging in sex work while doing things that people with different identities engage in all the time. Because of this, loitering laws are often referred to as “walking while trans.” These laws have been challenged on the basis of their discriminatory nature and disparate impact in New York State. Read the legislative memo from NYCLU on the challenge.

Example of a typical loitering law: Kentucky, (Ky. Rev. Stat. § 529.080)

Find out more more about the fight to repeal loitering laws.

Prostitution, Solicitation

Prostitution laws cover the exchange of sexual activity for resources. Solicitation laws cover the offering or discussion of engaging in prostitution, and may criminalize both the buyer and seller, depending on the state statute. (Example of a solicitation law which covers both buyer and seller, Illinois.) Laws which criminalize only the buyer are referred to as patronizing laws. (Example of a patronizing law, Washington state.)

What is defined as sexual activity differs based on the state which may enumerate activity, or leave the language broad and allow the courts, and by extension what behavior people are willing to challenge in court, to determine what specific activity is covered. (Example of a prostitution law with enumerated sexual acts, New Jersey, (NJ Rev Stat § 2C:34-1 (2013))

Often, prostitution laws are a misdemeanor where individuals race a range of possible penalties. In some states, multiple arrests will incur increasing penalties, including increasing jail time. (Example of a prostitution law with escalating charges, Arizona (Title 13. Criminal Code § 13-3214).

Read more about on-going decriminalization efforts.

Third-Party Charges

Also criminalized are the many people around a sex worker, including managers, partners, peers and sex workers who operate collectively. These laws may fall into a range of terms including promotion, facilitation, pandering, living off the proceeds of or pimping. Behaviors can include accompanying someone to a session, inviting a fellow sex worker to see a client, booking a session or finding clients, or posting an ad for a sex worker. (Example of a third-party law, Louisiana, inciting prostitution, LA Rev Stat § 14:83.1.)

While third-party laws do not require any form of victimization, two states have chosen to rename third-party laws to be misdemeanor trafficking laws (Maryland, Maine). Massachusetts does not require victimization, force, fraud or coercion in its trafficking law – meaning everyone who facilitates prostitution is subject to felony trafficking criminalization.

Sex Work is Work.

Sexual services can be mean physical contact such as escorting or domination, in proximity such as peep shows, and distanced with no physical contact such as cam work or pornography. Other terms may be people who engage in commercial sex, people who engage in the sex trades, and people who trade sex.

People who trade sex may engage under a range of different experiences, and experiences may shift or fall in grey areas. Some people in commercial sex while having multiple choices for how to meet resource needs. Some people have constrained circumstances and commercial sex may be the only viable option. Some people trade sex intermittently for immediate resource needs – exchanging sex for a place to sleep that night, for example. Some people are forced or coerced by a manager or partner to engage in commercial sex. Commercial sex may be an evolving constellation of experiences, and all are valid.

This work can be done independently, collectively with peers and/or for a manager. Sex workers may find clients in public spaces such as street-based or bar-based work, online, or through a manager. Sex work may be formal and include formal documentation such as pornography or informally with cash or under the table.

There is no singular experience of commercial sex.

Other industries with a wide range of labor experiences: domestic work, construction labor.

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