The Decriminalization of Sex Work Is Edging Into the 2020 Campaign

There isn’t much to recommend the current iteration of American presidential elections, which now begin some two years before the day voters go to the polls. One upside, though, is that it opens up policy conversations that are usually closed off. The result is the beginning of a public conversation about decriminalizing sex work.

Three Democratic contenders for the 2020 presidential nomination — Sens. Kamala Harris and Bernie Sanders and Rep. Tulsi Gabbard — have weighed in on the rights of sex workers. Harris and Gabbard have said they support the decriminalization of sex work, while Sanders was noncommittal in his response. The mere fact that presidential candidates are being asked about sex work, however, represents a shift in the public discourse on the sex work community. Yet there’s a ways to go: The Intercept reached out to the other congressional Democrats running for president — Sens. Cory Booker, Kirsten Gillibrand, Amy Klobuchar, Elizabeth Warren, and former Rep. Beto O’Rourke — and got no response.

The sex workers’ rights movement was galvanized in 2018 in reaction to the passage of legislation known as SESTA-FOSTA, which purported to curb sex trafficking by holding online platforms legally liable for any content found to “knowingly assist, facilitate, or support sex trafficking.” All congressional Democrats running for president voted for SESTA-FOSTA.

Passage of the law resulted in the shutdown of prominent personal ad sites and marketplaces, forcing sex workers to resort to working on the streets or with pimps. It also led sex workers, who often feel abandoned by the progressive left, to organize and ramp up their activism. The urgency of the situation is pushing advocates to define what they actually mean by “decriminalization” and to push for policy changes at state, local, and national levels. The organizing has produced the most results in New York, where activists working with lawmakers have launched a campaign to decriminalize sex work in the state, and it’s also created tensions around the Democratic Socialists of America’s endorsement of Sanders for president.

“[The endorsement process] wasn’t looking for feedback. It was looking to tick a box and say DSA is endorsing,” said Kim Lehmkuhl, a member of Metro D.C. DSA. “That puts members who belong to marginalized communities, or who wanna be in solidarity with them, in a position where we’re now doing this very Democratic Party, liberal thing of throwing our comrades under the bus for political expediency. And that feels really gross and bad, and especially a year in advance, it seems not defensible to me.”

Politicians rarely address the underground industry, despite its intersection with criminal justice reform, labor rights, immigration, LGBTQ issues, and racial justice. When sex work — which refers to the willing exchange of money or goods for sexual labor, including sex-adjacent industry workers like pornography actors, erotic dancers, and webcam models — is discussed on the national level, it’s often conflated with sex trafficking, which involves coercing someone into sex work through violence or other means. This false comparison results from a refusal to recognize sex work as a labor issue.

The public seems to favor moving toward decriminalization, according to a recent poll, though it’s by no means a majority view. The survey, conducted by Data for Progress in partnership with YouGov Blue, found that the public favors sex work decriminalization 41 percent to 35 percent, while Democrats support it 49 percent to 23 percent.

Sex workers’ rights advocates are optimistic about the fact that policy questions about the underground industry are being asked of candidates, even if there’s a long way to go to secure rights and protections for people who trade sex. “I’ve never seen anything like this before, as far as a policy consideration,” said Kate D’Adamo, a longtime sex workers’ rights advocate and partner with Reframe Health and Justice.

Harris, a former prosecutor who has been criticized for years by activists for hostility toward sex workers, appears to be the first mainstream presidential candidate to have called for the decriminalization of sex work.

“I do not believe that anybody who hurts another human being or profits off of their exploitation should be admonished or free of criminal prosecution,” Harris said in a recent interview with The Root. “But when you are talking about consenting adults, I think that you know, yes, we should really consider that we can’t criminalize consensual behavior as long as no one is being harmed.”

“I was advocating [15 years ago] that we have to stop arresting these prostitutes and start going after the johns and the pimps, because we were criminalizing the women,” Harris added.

The statements were remarkable coming from a politician whose record includes opposition to a ballot initiative meant to end prostitution arrests, known as Proposition K, as San Francisco’s district attorney, as well as her role, as California attorney general, in shutting down websites sex workers used for advertisements and to safely screen clients, like Backpage.com.

The sex work community, however, is skeptical of Harris’s shift, and in particular of her position that she supports an increased crackdown on “johns,” a term for the clients of sex workers. Nina Luo, a steering committee member of Decrim NY, a New York-based coalition that seeks to decriminalize sex work, said the California senator’s answer worries advocates, who have worked for several decades to build political education around decriminalization. What the candidate described, Luo said, is the Nordic model, which shifts the burden of incarceration to clients instead. For activists, true decriminalization is the removal of criminal penalties and interactions with the criminal justice system for any sex trade between adults, including patrons.

“That was incredibly disappointing, because that is a lot of people’s first interaction with decrim and it feels like a term that a lot of people have spent their lives working on is being co-opted,” Luo said. “I’d love to just see a little more nuanced discussion of just decrim versus legalization versus the Nordic model and why people trade sex and what they want.”

Gabbard, a representative from Hawaii, also said in a recent interview that she wants to decriminalize sex work. “If a consenting adult wants to engage in sex work, that is their right, and it should not be a crime,” Gabbard told BuzzFeed. “All people should have autonomy over their bodies and their labor.”

Her position on sex work comes after a recent reckoning with her past anti-LGBT activism, including working for her father’s anti-LGBT organization, which promoted conversion therapy. She has apologized for her involvement with these efforts in recent months, saying her views have changed significantly since then.

Sanders, for his part, was asked for his stance on decriminalization in an interview with the hip-hop morning show “The Breakfast Club.” He replied, “That’s a good question, and I don’t have an answer for that.”

Luo called Sanders’s response disingenuous because “people who trade sex have been trying to meet with him for years.” His vote for SESTA-FOSTA means that “it’s not like this is the first time this has ever, like, come across his desk,” Luo said, noting that some DSA members opposed endorsing the Vermont senator because of that vote. They lost that battle: DSA’s National Political Committee voted 11-4 to back Sanders on March 21, following an advisory poll of dues-paying members. Roughly a quarter of DSA’s total membership participated in the poll, with 76 percent voting to endorse and 24 percent voting against it. But some members say the rushed endorsement surrendered any leverage the group could have had in pushing him to the left and also signaled that the issues affecting sex workers aren’t as important to the organization.

Ana Mri, a sex worker and former member of Las Vegas DSA, said her community has lost a powerful tool to hold Sanders accountable. At the same time, she added, even if the endorsement were not rushed, it’s unclear whether DSA — which, in her experience, can be hostile toward sex workers — would have tried to push the candidate on the issue, because the organization hasn’t formulated its own position on decriminalization.

“Being a woman, being trans, you know, being a gender nonconforming person in these places, it can be really hostile and it can be very uncomfortable,” Mri said. “That’s something we hear a lot across many chapters, so there’s already that culture that is definitely being battled in the org. … It’s all of the microaggressions, all of the violence, all of the hostility — take that and multiply it by a million when you’re a sex worker.”

In a statement, the Las Vegas DSA said its executive board “stands with our comrades in the sex worker movement,” condemning efforts like SESTA-FOSTA and a Nevada bill that would expand the definition of sex trafficking. “We view the criminalization of sex work as another form of capitalist, patriarchal oppression, often directed towards the most marginalized among us,” the group said. “Furthermore, we recognize that sex workers are foundational to the economy and character of Las Vegas. For over a century, their labor has been essential to building the city that we call home. We fight for sex workers when and wherever possible.”

Lehmkuhl said DSA members should address Sanders’s blind spots because they owe it to the candidate and to their organization, which grew exponentially after his 2016 presidential run and Donald Trump’s election. “He is currently the best candidate,” she said. “I want him to be a strong candidate. I want him to not continue to be vulnerable on these issues and, best-case scenario, I’d like him to care about all people. And if he doesn’t, I want him to have the right position on these things. We have time to do that.”

Luo is willing to cut Sanders a bit of slack, noting that he may have answered the way he did in the “Breakfast Club” interview because the sex trade has been inappropriately gendered. “It puts male candidates in kind of a tough position, because it seems like they’re speaking on a woman’s issue, when in reality it’s not,” she said.

D’Adamo said Sanders’s lack of position on the issue is an opportunity for education and an opportunity for advocates to reach out to his office. “He’s been working on the federal level for longer than I’ve been alive,” she said. “So not having sat down and thought through a state-level issue doesn’t surprise me.”

Though most sex work policy is determined at the state level, both Congress and the executive branch wield significant influence over the rights and health of people who trade sex, through legislation like SESTA-FOSTA and Justice Department prosecutions. “This is a 2020 issue, not just for whoever becomes president, but we have to really be pushing Congress on it as well,” D’Adamo said.

The Justice Department, specifically, uses the criminalization of sex work as a proxy for effective anti-trafficking investigation and work, according to an analysis by Lambda Legal. Instead of addressing the systemic conditions that exacerbate trafficking, measures meant to combat trafficking primarily rely on law enforcement, which has been found to increase vulnerability to exploitation for both people who trade sex and people who have been trafficked. A presidential administration that wanted to enact substantial changes would have to untangle effective anti-trafficking policy, which “looks a lot like access to resources,” from what is “just hypercriminalization of the sex trade” being passed off as anti-trafficking work, she said. “That can happen in the Department of Justice, in the Department of Homeland Security; there’s a lot of different ways actually that we can do this work”

When sex workers’ rights advocates talk about decriminalization policy, D’Adamo noted, they’re talking about a reduction in policing, but they’re also largely referring to accessibility to basic resources and services. Sex workers who have been criminally prosecuted can be barred from obtaining housing, employment, Pell Grants, and access to higher education.

Even having more dialogue around making health policy responsive to the needs of sex workers would be a major step in the right direction, she said. HIV policy, she added, has been developed “a lot of times without people who trade sex and other marginalized populations in those conversations.” In most states, individuals living with HIV can face felony charges or felony-type sentences for knowingly or intentionally exposing a partner to HIV without their knowledge.

Another priority is “looking at re-entry programs in the services we provide incarcerated folks when they get out of prison or jail,” D’Adamo said, and making sure that employment, health care, and housing services are accessible to LGBTQ populations, and trans youth in particular, who are much more likely to trade sex than their peers for access to basic things like shelter.

“We have to remember that elections are not just every four years, and they’re not just the president,” D’Adamo said. Pouring energy into local races through efforts like canvassing can make a huge difference in the lives of people who trade sex, she added.

In the midterm elections, New York state Sen. Julia Salazar stood out because she incorporated comprehensive decriminalization policy, shaped by consultations with the sex work community, into her platform. Last month, Salazar and Sen. Jessica Ramos announced that they intend to introduce a bill this session to decriminalize sex work in New York.

“When we talk about decriminalization, yes, we’re talking about elected representatives, we’re talking about policy, but there’s a lot of different positions that can actually make a huge difference in people’s lives, as Julia Salazar is showing,” D’Adamo said. “If we just have a [district attorney] that says, ‘I’m not going to prosecute loitering charges anymore’ — that makes a huge difference and has the same effect.”

Last year, sex workers and allies from across the country held a first-ever lobbying day on Capitol Hill, New York sex workers held canvassing and campaign events for Salazar’s campaign, and hundreds attended the first known town hall in American history to discuss sex workers’ issues.

Sex workers have always shown up to the political process, but their vocalness on the issues that most directly impact them is a new development, D’Adamo noted. “It’s more, are we going to see this issue pushed? And I genuinely believe so.”