Sex work ruling isn’t the end of the line

On Jan. 17, the 9th U.S. Circuit Court of Appeals affirmed dismissal in Erotic Service Provider Legal Education & Research Project v. Gascon. 2018 DJDAR 594. This case is a challenge to the constitutionality of California's criminal law against "prostitution," filed by sex work advocacy organization ESPLERP, together with three individuals who seek to perform sex work legally in California and one person who seeks to hire a sex worker legally. The decision was a frustrating disappointment, but by no means the end of the line for efforts to decriminalize sex work in California.

Sex work should not be criminalized because the Constitution protects the rights of consenting adults to engage in private, consensual sexual activity without fear of criminal penalty. In other words, the Constitution protects an adult's personal decision to engage in intimate, sexual activity with another adult, whether the intimacy is built on love, motivated by desire, or done in exchange for money or other things of value like shelter, food or necessities.

At a minimum, laws prohibiting consensual adult sexual behavior merit a heightened level of constitutional scrutiny because they infringe upon the fundamental right to intimate association, recognized by the U.S. Supreme Court in Lawrence v. Texas in 2003. Further, evidence shows that in California as elsewhere, discriminatory enforcement of sex work-related laws frequently exposes LGBTQ people and women to serious harms, including violent encounters with the police, whether or not they are actually engaged in sex work.

In 2016, the ACLUs of Southern California and Northern California joined with an array of more than 20 other civil rights, legal services and social services organizations in submitting an amicus brief to the 9th Circuit in support of ESPLERP's appeal. We argued for heightened scrutiny and also highlighted ways in which the current criminalization scheme has had disproportionate adverse effects on women, LGBTQ youth, gay men and transgender women.

Unfortunately, last week's decision did not acknowledge those effects. Authored by Judge Jane Restani (sitting by designation from the Court of International Trade) and joined by Judges Carlos Bea and Consuelo Callahan, the opinion primarily focused on plaintiffs' argument that the law infringes on their fundamental liberty interest in intimate association. It rightly noted that the Supreme Court's Lawrence decision explicitly did not address "commercial" sex. But the panel was apparently unwilling to seriously consider whether the Lawrence reasoning should apply in contexts where intimate association is compensated. Further, in briefly attempting to distinguish Lawrence, the court focused on that decision's references to intimate "relationships" -- frustrating because the history of the Lawrence case shows that the plaintiffs, John Lawrence and Tyron Garner, were not, in fact, in a relationship.

Last week's decision also relied on IDK, Inc. v. Clark County, a 1998 case in which the 9th Circuit upheld the constitutionality of a Nevada locality's efforts to tightly regulate escort services. The panel declined to treat Lawrence as having effectively overruled IDK, again in the absence of an explicit direction from a higher court. It then concluded the statute was constitutional because the state had advanced rational reasons for it, including government interests in preventing human trafficking, reducing drug use, minimizing the spread of sexually transmitted infections and mitigating a "climate conducive to violence against women." Many scholars and sex work activists have argued that blanket criminal prohibitions on sex work, by heightening social stigma and discouraging affected individuals from seeking government help or organizing amongst themselves, actually worsen each of these problems that California claims its ban helps address. Nonetheless, the deferential rational basis standard allows cases like this to be dismissed on early motion, without scrutiny of whether the justifications offered are reality-based.

Significantly, the court made clear that it was treating ESPLRP's case as a facial challenge. Even if this opinion stands, the door is open to future challenges by individuals who argue that the way California's prostitution laws have been enforced against them in particular is unconstitutional. In addition, ESPLERP has publicly indicated that it may seek rehearing en banc.

Meanwhile, sex work activism in California continues on other fronts. Activists here are learning from the successes and challenges that have emerged from decriminalization of sex work in other nations, from Germany and Sweden to New Zealand and Australia to Canada. Many hailed a recent announcement from the San Francisco Police Department that it will not prosecute people for prostitution or minor drug offenses when they report having survived a violent crime while doing sex work, though the extent of that policy's practical effect is not yet known. In Los Angeles, in an effort to disrupt the historical pattern of government arresting and prosecuting survival sex workers rather than offering them any help, transgender community leaders have partnered with city agencies to organize regular "Midnight Strolls" that seek to connect people engaged in street sex work with housing, food, clothing, condoms, HIV testing and other services. Advocates from many distinct movements aim to collaborate with activists involved in the sex trade on proposing alternatives to our current, broken criminalization system. And thus, despite last week's bad news from the 9th Circuit, momentum to advance sex workers' rights in California remains strong.