A reflection on sex work
On July 31, 2018, the BOE issued a resolution whereby the Ministry of Labor formalized the constitution of the OTRAS union (Sex Workers Organization), under Art. 28 of the EC, which establishes the fundamental right to unionize freely.
In line with this news, many voices put the cry in the sky, coming mostly from the so-called “feminist abolitionist sectors,” leading to the resignation of the then general director of Labor, Concepción Pascual, after the affirmation of the Minister Magdalena Valerio that “they had scored a goal for the squad.”
As a starting point, and from the formal legal point of view, the registration of the union meets all the requirements provided for in Organic Law 11/1985 on Freedom of Association, as well as in Royal Decree 416/2015, on the Deposit of Statutes of the union and business organizations.
The procedure for the constitution of a union is part of the aforementioned fundamental right, with no more limitation than respect for legality, granting statutes with certain requirements and depositing them for the purposes of registration and publicity.
After 20 days without the administrative authority having noticed any error, the union acquires legal personality and full capacity to act. And only the suspension or dissolution by resolution of the social jurisdiction.
Therefore, the creation of a union can not be subject to a prior administrative authorization, as it could not be otherwise in a democratic system, and the TS has been entrusted with clarifying many resolutions.
In terms of substance, the objectives of this union are to protect the rights of people engaged in sex work, recognizing the vulnerability of their current situation. Welcomes people who work for others and also their own, but in no case to those who have workers under their charge, which substantially differentiates their interests from those of companies in the sector.
It is worth remembering that sex work is a much broader term than prostitution: it covers activities such as pornography, erotic lines, massage parlors, saunas, escort services, strip clubs or lap dance clubs, alternative or sexual assistance. Based on this, as stated by Giménez Merino, OTRAS claims, at least, two questions derived from its consideration as WORKER:
- Social re-signification derived from the recognition of their status as professionals, in contrast to the bad social and pejorative image of the term “whore”, in a market that — paradójicamente — massively consumes sexual products.
- Acquire guaranteed vital minimums such as security against everyday violence, effective judicial protection, health rights, unemployment insurance, sick leave, vacations, or pension base. Rights on the other hand collected at the international level (Document of the Global Network of Sexual Work Projects, 2013).
Arriving at this point, we could question the possible “illegality” of the work that this union tries to protect.
First of all, give voice to the protagonists: the Global Alliance against Trafficking in Women (GATTTW) has defended a rigorous research network in seven countries, about how the organization of sex workers can improve their living conditions and fight against trafficking in persons.
Chus Álvarez (Ávila, 1979) responsible for Latin America of the GATTTW, responded in an interview to Amanda Andrades in this medium on the subject that concerns us.
We are left with several essential questions.
- More than 80 organizations of the aforementioned network around the world claim the need to strengthen working people to defend their rights and break with the exploitation and / or precariousness that is accepted, whether as a national or migrant.
- It does not mean the same “treats” as “traffic”. The definition of Palermo (Protocol against the Trafficking of the United Nations) establishes that in order to have trafficking there must be a transfer of a person to another place under deception and that the ultimate purpose of this is exploitation. On the other hand, traffic is, basically, facilitating the entry from one country to another in an irregular manner.
- Creating anti-trafficking policies in an artificial way, mainly aimed at strengthening borders, only makes migration more difficult and makes it more dangerous.
- The New Zealand model is the only one that decriminalizes sex work (since 2003). According to official data from this government, there has not been any case of trafficking in persons in the sex industry, despite frequent border controls. However, the best living and working conditions that this group has are not enjoyed by migrants, who continue to carry out sex work without protection of any legal framework.
- Garasimov, responsible for communication of the GATTW, strongly affirms that the organization of sex workers fight against the stigma, exclusion, and discrimination they receive from society and from the authorities.
- Criminalization and stigma allow pimps and traffickers to abuse sex workers and ensure the non-filing of complaints.
- There are no conclusive data referring to the fact that legalizing this work leads to an increase in trafficking, and those available to us from the ILO show that with respect to victims of trafficking, there is an equal number of women (55%) and men (45%) 90% of the total would be exploited by people or companies, and of these, 22% for the purpose of sexual exploitation and 68% for the purpose of labor exploitation. The remaining 10% would be people in forced labor imposed by the government or military states.
In similar terms, the CATS Association, Committee of Support for Sex Workers, is expressed, for whom “the abolitionist positions are the result of ignorance. They are white women of middle class who have read a lot, but who do not know what it is to live in precarious, have not stopped to listen to their protagonists. All debate is lawful, but let us be aware of how the anti-prostitution theories and policies reverberate and the harm they cause to women like us. Sex workers are not victims, they do not want to be saved, they have a political identity, and they demand their rights. ”
Loola Pérez, president of the Association of Young Women of Murcia, a specialist in integration and sexuality, affirms that “the government of Pedro Sánchez is mistaken in equating feminism with abolitionism; the Spanish movement knows perfectly well that it deals with the purposes of sexual exploitation and prostitution are different realities, but it puts its morality on sexuality before that of the rights of people who perform sex work “.
And Valèrie May, a prostitute, is adamant in saying that abolitionism will not prevent sex work from happening, as well as that it is essential to distinguish who is a victim of trafficking and who practices sex work.
The International Committee on the Rights of Sex Workers (ICRSE) has launched a campaign against the Government of Pedro Sánchez for its claims to annul the union. This Committee brings together 100 organizations that collaborate in the protection of sex work and recalls that only Russia has rejected the right of self-unionization of this activity, violating international standards such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Cultural, and Social Rights.
The APROSEX (Association of Sex Professionals) remembers for its part a fact that I understand essential: the Spanish State does not hesitate to account for the income from the activity derived from sex work within the GDP. The Government does not care that the businessmen with operating license extract great profits from the fruit of these activities, but it does involve a conflict that the workers of the sector, historically reviled, try to organize to protect their rights. (Since 2015, and moved by the European requirements of budgetary stability, Spain introduces into the GDP the money that moves prostitution, and Law 20/2007 regulates the framework so that it can be quoted on its own account).
The unions of sex work are social agents that carry a political discourse in which one can find a critique of capitalism, the patriarchal system, racism, or classism. It had its spearhead through STRASS-Syndcat du travail sexual, founded in 2009. There are multiple factors of exclusion on the people who carry out this work, showing an exemplary case of multiple discrimination that needs urgent intervention at several levels. And this is not possible without the recognition of the right to dispose of one’s own body. A truly feminist government would always have to put the social question before moral evaluation.
In reality, what must prevail is the articulation of a strong union discourse on two fronts: the interlocution of the workers themselves encourages spaces for self-management (or “rest”) and dialogue with the neighborhood and local authorities to avoid the expulsion of those in an ignominious competition between city ordinances, on one side, and on the other, to build a legal policy that pressures the government to get its rights protected like any other collective. As well exposes “Sluts outraged”, “whores are also working class.”
With regard to the legal issue, the judgments of different Courts and Superior Courts of Justice, in the social order, declared the autonomy of those in charge of brothels or undercover prostitution. In fact, the majority and decisive criterion in this order applied a scale that we can not share, from a rational point of view: the activity of “alternate” was admitted, where the existence of an employment relationship was possible, and paradoxically, the illegality of the exercise of prostitution on the grounds that alienation and dependence determined the absolute incompatibility of procuring with human freedom and dignity.
How can it be that we do not see from the courts — claiming the rights and freedoms of all citizens – that the aforementioned alternate does not cease to be a purely instrumental activity aimed at providing sexual relations to clients?
Until now, only one judge, Joan Agustí, head of the 33rd Social Court of Barcelona, has been able, in two more than well-founded sentences, to leave the prejudices that cross the entire “progressive jurist class”, to study with objectivity the subject that now occupies us and after that, protect the rights of the most vulnerable people: those who practice prostitution in areas free of law and in absolute absence of basic rights.
Faced with the arguments that the Platform March 8 of Seville and the Commission for the investigation of Ill-treatment of Women exposed in a recent lawsuit before the National Court to get declare the nullity of the Other Union -the impossibility of sex work for others- we must remember the jurisprudence of the Criminal Chamber of the Supreme Court, which has interpreted art. 188 of the CP (after the reform of 2003) in the sense of defending that only pimping is prohibited in the framework of forced prostitution. The consent of the person who practices prostitution plays a decisive role as a guarantee of their sexual freedom.
The professor ML Maqueda Abreu postulates for its part (“Towards a justice of rights”, Diario La Ley, 16. 3. 2010) and so J. Agustí picks that, with respect to the supposed violation of dignity, it means entering in a valuation of moral type, since it can not be imposed to the free individual arbitration, being hypocritical to deny the work status worthy of legal protection, when this legitimation does exist for the industralists of the sexual industry.
Regarding the community framework, the aforementioned judgments address the possible collision of postulated employment with the principle of equality, recalling on the one hand the STJCE of November 20, 2001, which made clear the non-assumption of the abolitionist and prohibitionist positions, and included Prostitution as an economic activity, on its own or wage-earning. And on the other, the European Parliament Resolution of February 26, 2014 on sexual exploitation and prostitution and its impact on gender equality.
This last resolution affirms categorically that not only forced prostitution, but also simple prostitution and sexual exploitation have a large gender component that constitutes a violation of human rights and that their legalization increases the risk of a higher level of violence and abuses.
Taking into account such postulates, as well as other mandates contained in LO 3/2007, of Effective equality of women and men, Joan Agustí defends that denying recognition of work in the Spanish State – while the Government does not assume the recommendations of the Parliament European and submerging the current situation of “alegalidad” of this activity- does nothing but aggravate enormously the unquestionable damage to the dignity, freedom, and equality of the people who exercise it.
Especially when in the cases examined by the judgments the workers exercised their work freely, without coercion, in an unforced manner, under the company’s dependence, without finding any reason of criminal wrongdoing or injury of fundamental rights.
So far, we have analyzed the issue of sex work from a sociological and legal perspective. We will conclude by putting our own thinking into play.
The Criminal Policy Studies Group, of which I am a member, prepared a Manifesto in 2006 in favor of regularizing the exercise of voluntary prostitution among adults, which had no reception in the reform of the Criminal Code of 2009. This Manifesto claimed no only decriminalization, but, above all, the implementation of social policies aimed at guaranteeing respect for the rights of all types of those who decide to engage in the provision of sexual services within the framework of the leisure industry.
The Manifesto highlights fundamental aspects such as the fact that the repression of all types of sex work has thrown a historical balance that can only be described as regrettable, because it has never eradicated the phenomenon, but has hidden it causing a series of effects pernicious as the stigmatization, vulnerability or exploitation of the people who exercise it.
Only reasonable knowledge can be built by avoiding the moral approaches that try to simplify a complex and diverse phenomenon, without forgetting that women are mostly those who exercise it, but also men and trans, which implies that the debate can not be monopolized by a speech in the key of gender.
It was then a question of defending all forms of self-organization that would guarantee the protection of the rights of these workers, in the face of the situation of allegiance that favors their exploitation.
I also subscribe to authors such as Gloria Marín, a member of the Viento Sur editorial team, when in her article of September 5, 2018, she refers:
“I do not need to talk about happy whores, because I’m not talking about happy housekeepers or happy waitresses either: I’m talking about workers who need to defend their rights, and the lack of them increases unhappiness. Sometimes the argument seems to be how horrible life is for prostitutes. For example, the “disgust” that involves contact with the genitals of another person. Personally, there are several legal jobs that involve contact with things that give me much less disgust than any part of a living human body. And above all, without denying all the horrible that there may be, why, for the seasonal women of the strawberry, the recipe is more rights and not for prostitution?
Is it true that in prostitution everything is good for “invocations to the free decision of women? Of course, it is not my case. I think, with Marx, that in capitalism workers do not have free decision to accept a job. “
Finally, I would like to make the words of Monsterrat Galcerán equally clear when he refers:
“If, from feminism, our objective is to help women to behave as active subjects, to empower themselves and take control of our lives, it is not understood that there are women who advocate their prohibition. What strange fears evokes in us the mention of sex work? Are we not able to escape the morality that covers sexuality in our society? It seems that what is well seen out of love is frowned upon if it is done for money. The discourse of romantic love covers sexual practices and prevents them from being treated in their material reality, and class bias is not far away either. “
Amaya Olivas Díaz is a magistrate of the Social in Madrid. Member of Judges for Democracy. She has worked on issues of criminal mediation, punitive capitalism and democratic memory, among others. This article was originally published Revista Contexto.