Debates on how best to govern commercial sex and reduce its potential to generate health problems have a long and complex history out of which little consensus has emerged. These debates are often tied up with narratives about disease control and harm reduction; female virtue and empowerment; and migration and slavery [47
]. In recent years attention to sex workers’ sexual and reproductive health and rights has been prompted by a desire to control and reduce HIV. However, political framings of sex work within a paradigm of exploitation and slavery have also gained enormous political traction. In this paradigm the sex industry is imagined to be inherently abusive and those involved in it lacking agency. In this way sex work is conflated with “sex trafficking”, which has the effect of creating a powerful force against public health or other initiatives aimed at making sex work safer lest it be considered as colluding with exploitation or even slavery.
Although some of those rights talked about by sex worker rights activists are mentioned in conventions, some are undermined or weakened by international law whose jurisprudence has traditionally constructed sex work as an affront to human dignity. The danger of a continuation of the status quo is that formal rights frameworks become even less relevant to sex workers. There is a significant tension between those who wish to uphold the rights of sex workers in order to reduce vulnerability to ill-health and those who insist that sex work is itself a violation of rights and human dignity and cannot therefore be regarded by law as a legitimate occupation.
There is much in the international human rights conventions and law that accords with sex worker rights activists’ demands. However our analysis of international legislation and national legal responses highlights instances of difference and contestation. In some cases sex worker rights claims push up against the boundaries of conventional interpretations of human rights. Confused definitions and understandings of sex work, sexual exploitation and human trafficking are not merely a historical artefact. They are “live” issues that require informed debate and resolution if the UN and international law are to play a positive role in improving the health and human rights of women, transgenders and men who sell sex.
Sex worker rights activists clearly have reason to be delighted about renewed attention to the idea that punitive laws against sex work should be removed. However the instrumentalist argument made by some public health professionals that sex workers’ rights are necessary in order to ensure that sex workers’ access HIV prevention services is quite different to the framing of sex workers’ rights in the various declarations and position papers from activists that we reviewed. While both health authorities and sex workers stress the importance of access to HIV and STI testing and condoms as the key to good health outcomes, sex worker rights activists place equal or more weight on their ability to work in safe, clean and fair workplaces.
Simply removing criminal law is unlikely to be a solution in itself. Good regulations, effective health programmes and equitable policy do not automatically begin when criminal laws are removed even in rich and well governed countries, let alone where regulatory systems generally are not well organised. If criminal laws are replaced with discriminatory or inappropriate policy and law the health and safety conditions in the sex industry could actually be made worse and access to services denuded.
There are some clear gaps in the discourse around sex work. Most literature focuses on female sex workers and much of it on young women. Far less attention is paid to the health issues facing male, transgender, migrant, drug using or older sex workers. Better understanding of the broad scope of laws policy and enforcement practices that affect sex workers in the many very different cultural contexts and economic settings is needed urgently. The lived experience of sex workers is rarely the topic of ethical, methodologically rigorous examination and there is little systematic collection of data about law and its impact.
Careful review of UN policy and the international human rights conventions and related law is much needed too. Such a review should begin with recognition that the international legal framework is sometimes at odds with grounded understandings of entitlements and frequently at odds with itself. Sex workers’ broad spectrum of claims is based on collective understandings of human rights grounded in justice rather than on sophisticated technical knowledge of international human rights conventions and laws and the various roles of the institutions and individuals upon whom they confer rights and duties. It is possible to create regulatory frameworks for commercial sex that support safe practice by recognising commercial sex as a legitimate activity. Only in this way does it become possible for sex workers to be accorded all of their human rights.
To develop a formula for law, policy and enforcement practices that enables a safer sex industry, supports sex workers to claim human rights and protects health including reducing vulnerability to HIV, governments require three things:
1. Precise language to describe the regulatory environments for commercial sex, the consequences of possible regulatory options, and the potential solutions;
2. Accurate local data about the domestic laws, policies and enforcement practices to be remedied, and their impact, intended and unintended, on the health of male, female and transgender sex workers; and
3. A commitment to human rights standards and norms, including the right to work, to equal protection under the law, to freedom of association, and a recognition of the right of consenting adults to form sexual relationships of their choice provided others are not harmed.
Health projects are well placed to gather information about law and its impact in much of the world. Those with policy and advocacy capacity can actively support sex workers’ campaigns which are notoriously under-resourced. The best course for health agencies is to listen to sex workers and join with them to demand the fundamental changes locally, nationally and internationally that can make sex work safe, enable sex workers to realise their human rights and enable access to the sexual and reproductive services they need to stay healthy.