Will Global Surrogacy Be Regulated?

Karen Smith Rotabi and Nicole F. Bromfield

Global surrogacy is a growing "industry."  It has grave potential for human rights abuses, including coercion and trafficking in women for forced reproduction, among others. Yet there are no international standards limiting this practice nor enough research on the implications of surrogacy in countries where it is prevalent.  We must act now to investigate and regulate this industry before it is too late.

This article is the third in a series on global surrogacy by the authors published by Rewire.  Links to the previous articles on Guatemala and on India can be found in the text below.

Opening a conversation about the intersection between global surrogacy and trafficking requires that, regardless of the alarming practices outlined in previous articles (on India and on Guatemala), we must acknowledge that there are no internationally-accepted standards for regulating surrogacy practices. Among nations of the Global South, only India has sought to codify practices in the form of the Assisted Reproductive Technology (ART) [Regulation] Bill 2010, which is still in draft form. While this new law may work out some practicalities, realistically women in India will remain vulnerable to abuse.

In India, both women’s bodies and reproduction are constrained by the importance placed on bloodlines, the traditional value put on childbirth in addition and an emphasis on women’s “purity.” Surrogate mothers are, inevitably, at risk of social stigma. For married women engaging in surrogacy, many questions arise: How does surrogacy affect the marriage?  Existing biological children?  Many clinics, for example, require that the surrogate abstain from sexual relations with her husband during the pregnancy. Since surrogacy requires absence from family life as women live in pregnancy dormitories or camps, research on the cost-benefit analysis and impact on Indian family systems is needed. This includes the impact of absence on the surrogate’s existing children.

More research also is needed in other nations where these practices have been quietly occurring. This includes the former Soviet Union, which is infamous for sex trafficking of women. Called Natashas, women’s bodies are sold internally and on the global marketplace for sex trafficking, and it seems inevitable that organized crime will shift into the surrogacy market and sales of women’s reproductive capacity. The proximity of Guatemala, also known for serious human trafficking problems, to the USA provides an added “value,” making global surrogacy even more affordable to US citizens. Guatemala’s lack of civil society and extreme poverty makes it ripe for entrepreneurs, including those who have previously worked in the inter-country adoption sector. We predict that Guatemala will become a new battleground on this issue and given the history of reform in the nation, it is likely that legal regulation will take years to institute.

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International bodies such as the United Nations have seriously considered human rights abuses related to human reproduction.  But the intersection between human trafficking and reproduction in the form of surrogacy has largely been overlooked in regard to fertility technology and the demand for infants. The June 2010 Hague Conference on inter-country adoption explored this issue as an unintended consequence of worldwide adoption reform to prevent child sales and theft.

Taking on this lucrative industry, netting well over a billion dollars annually on a global level, will be a challenge as it booms. New investigations and progressive discourse about human rights in this age of reproductive technology will be essential and must begin immediately. Emergent issues include fears about highly efficient baby farming and the rights of self-determination for women who work with little economic opportunity or rights in their communities. Some, like Dr. Nayna Patel, the Director of the Akanksha Infertility Clinic in India will argue that this is a form of work for a fair wage, with a woman earning far more in nine months than the average impoverished woman could earn in several years. This argument is much like the one used for prostitution and a woman’s right to the marketplace and exercise of free will. Discourse about the various perspectives is important, but overlaying the phenomena on extreme poverty requires us to proceed with strict controls and human rights considerations. To do otherwise is dismissive of fundamental social justice principles of equity and fairness.

While some may call this science fiction, thinking in the future tense is essential because inevitably the loopholes in US immigration policy and state-level adoption laws leaves great vulnerability for human sales. For example, an impoverished woman in Guatemala could be fertilized with a highly desirable egg (i.e. from an Ivy League college student in the USA) and the sperm of a US citizen. If a parent or adoption representative is one of the unscrupulous persons involved in human sales, he/she could feasibly bring the child back into the USA as a citizen (given the lack of Federal surrogacy regulations in the US) and then immediately relinquish the child to the U.S. private adoption system. This could be done repeatedly with little oversight beyond immigration documentation. Because the US-private adoption system is notorious for high fees for desirable infants, especially in states where there is little regulation, a new form of child sales could prevail. Again, call it science fiction, but the lengths to which individuals and couples have been willing to go for a healthy infant have been extraordinary. All of this could easily be accomplished for $50,000 to $60,000 with the assistance of a handful of adoption attorneys that are known to be aggressive in serving the marketplace.  We already know that many individuals and couples have been willing to pay such (or more) for a healthy Caucasian infant that has not been exposed to substance abuse in utero.

The legal intersection between global surrogacy and existing human trafficking laws is weak at best, and it might be difficult for a perpetrator of the types of human trafficking scenarios mentioned above to be prosecuted under current human trafficking legislation. The U.S. Trafficking Victims Protection Act (TVPA) protects victims of labor trafficking and certainly coerced surrogacy might be viewed as a form of labor trafficking,  however, no protection to the trafficked infant  in our “science fiction” scenario would be afforded under current US trafficking legislation. Furthermore, the current federal trafficking law would not be sufficient to prosecute the trafficker in this same scenario. The UN Trafficking Protocol, also known as the Palermo Protocol, might allow for protection to a surrogacy trafficking victim, because the protocol loosely defines human trafficking and includes deception, the abuse of power, or having control of another person for the purpose of exploitation, in its trafficking definition.  However, it is up to individual nations, who are signatories of the Protocol, to develop their own specific definition of trafficking within the Palermo Protocol framework, and to pass their own federal trafficking legislation. What is needed is for governments to explicitly name global surrogacy as a potential form of human trafficking, similar to the mention of organ smuggling, which is named as a type of human trafficking in the UN Trafficking Protocol. Minimally, governments need to be aware that there is the potential for serious human trafficking offenses within the emerging global surrogacy marketplace.

Commentary Law and Policy

For Its Orchestrators, Campaign to Attack Planned Parenthood More Legal Trouble Than It Was Worth

Imani Gandy

The actions of the "Human Capital" project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But for those behind the project, it may prove to be more legal trouble than it was worth.

Read more of our articles on the Colorado Springs Planned Parenthood shooting here.

After 30 months of effort, anti-choice activist David Daleiden claimed to have definitive proof that Planned Parenthood was in the grisly business of harvesting fetal “body parts” and profiting from their sale. This operation, which Daleiden dubbed the “Human Capital” project, was going to be what finally shut down the behemoth reproductive health-care provider. Conservative websites galore gloated that it would be the final nail in Big Abortion’s coffin.

On July 14, Daleiden released his first video, igniting a firestorm across social media. More than five months have now passed. The actions of the Human Capital project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But—in part because of these consequences—for those behind the project, it may prove to be more legal trouble than it was worth.

In Daleiden’s footage, actors posing as officers of a fake tissue procurement company he created called BioMax appear to be haggling with top Planned Parenthood officials regarding the cost of purchasing fetal tissue—or, as Daleiden put it, “baby parts.”

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There’s nothing illegal about fetal tissue donation programs. The law permits recouping reasonable costs associated with its transport, processing, preservation, quality control, and storage. And nothing in the videos demonstrated that Planned Parenthood was doing otherwise. But because they were heavily edited to make it look like Planned Parenthood officials are using the profits from fetal tissue to buy Lamborghinis and drink expensive wine—and because when it comes to abortion rights, sense and logic are often discarded in favor of inflammatory rhetoric—the videos immediately went viral. The hashtag #PPSellsBabyParts trended on Twitter for days. Lawmakers on a state and federal level rushed to attempt to defund Planned Parenthood, with senators most recently voting to do so last Thursday night as part of an Obamacare repeal. In addition, Planned Parenthood announced that it would no longer accept reimbursement for tissue donation.

As the scandal drags on, however, not a shred of evidence has been produced to suggest that Planned Parenthood broke any state or federal laws in connection with its fetal tissue donation programs.

None of the states that began investigations into Planned Parenthood have found any suggestion of nefarious activity. Federal lawmakers haven’t had much luck, either, despite multiple hearings conducted by different congressional committees. Though House Republicans announced in early October that they would be forming a Benghazi-like special committee to continue an investigation into Planned Parenthood, any possibility that the organization will be found to be in violation of policies regarding fetal tissue donation seems to be flickering out.

What remains, then, are questions about whether or not David Daleiden himself and the organizations he created—CMP and BioMax Procurement Services, the fake tissue procurement company—broke federal and state laws in connection with their crusade against Planned Parenthood, and who coordinated with Daleiden to perpetrate this alleged fraud.

These questions have been teed up in federal court in San Francisco, where a discovery battle has been raging between the National Abortion Federation (NAF) and Daleiden for several months.

“Discovery” is the process in litigation whereby parties to a lawsuit have to, essentially, lay their cards on the table and turn over information that the other side might need to support their claims or defense. And in the lawsuit that NAF filed against CMP, discovery is the process that could unravel a conspiracy involving multiple players all acting in concert to take down Planned Parenthood. Such players may include anti-choice extremists connected to groups like Live Action and Operation Rescue, in addition to some of the anti-choice politicians who jumped at the opportunity to hold congressional hearings and form investigative committees about Planned Parenthood’s supposed dastardly deeds.

But NAF’s lawsuit is about more than CMP’s cynical effort to undermine rights by attacking one of the largest providers of reproductive health care. It is also about NAF’s members—Planned Parenthood affiliates and independent providers who battle incredible odds just to be able to provide a legal health-care service, and the professional association that takes seriously its job of providing a safe space where those providers can meet without fear of harassment.

As outlined in painstaking detail in NAF’s complaint, these providers, many of whom are under constant threat of domestic anti-choice terrorism, often rely on NAF to maintain a shroud of secrecy over its meetings and events so that these providers can feel safe there.

The necessity for such security measures has become obvious in the wake of Daleiden’s scheming. According to NAF court filings, reported incidents of harassment against Planned Parenthood clinics increased ninefold in July, as compared to June. Reported incidents of harassment were even more numerous in August. And in late November, Robert Lewis Dear Jr. was arrested for killing three people and wounding nine others at a Planned Parenthood clinic in Colorado Springs. “No more baby parts,” is what he reportedly said when interviewed after his capture.

Indeed, in September, the FBI warned that there would be “an uptick in attacks on reproductive health care facilities.” As reported by CBS, investigators have tied that uptick directly to CMP’s smear campaign.

So when CMP published footage accusing Planned Parenthood and other NAF members of trafficking in the sale of black-market “fetal body parts,” NAF set about stopping CMP from releasing any more videos that might prove dangerous for its members.

Thus far, NAF’s efforts have been successful.

Within weeks of the first video release, NAF filed a lawsuit in federal court against CMP, BioMax, David Daleiden, Troy Newman (the founder of radical anti-choice extremist group Operation Rescue), and a number of thus far unidentified alleged other parties. Among other civil and criminal allegations, the lawsuit alleges a conspiracy to defraud NAF, perpetrated for the purpose of intimidating and harassing abortion care providers.

Days after NAF filed its lawsuit, it won a temporary restraining order (TRO) blocking CMP from releasing additional footage or other materials that NAF alleges CMP fraudulently acquired at NAF meetings. The judge who issued the temporary restraining order, William Orrick, also ordered CMP and Daleiden to provide responses to NAF’s discovery requests: testimony, documents, and other evidence that NAF needs in order to prove its case that the temporary restraining order should be converted into a preliminary injunction continuing to block the video release.

The most important information sought by NAF is probably the video recordings themselves, many of which were surreptitiously recorded at private NAF events in violation of the explicit nondisclosure agreement that CMP members were required to sign before they could gain entrance into NAF’s annual meetings in 2014 and 2015. The confidentiality agreements are one piece of an extensive security protocol that NAF put in place to protect attendees from anti-choice terrorism.

Daleiden and CMP maintain that the TRO and any preliminary injunction that the court might issue constitutes “prior restraint,” or pre-publication censorship, in violation of the First Amendment. Daleiden believes that the confidentiality agreement that he signed is invalid because in his mind, NAF is an accomplice in Planned Parenthood’s baby parts trafficking scheme.

NAF has countered, and thus far Judge Orrick seems to agree, that First Amendment rights can be waived by contract, which is exactly what Daleiden did. And considering that no federal or state agency has found Planned Parenthood guilty of anything, Daleiden’s continued insistence that he’s an investigative journalist on a crusade to expose the illegal sale of aborted fetal tissue has begun to ring rather hollow.

If the only reason NAF was suing CMP and Daleiden was to make sure that no more video footage containing NAF’s sensitive information is released, Daleiden might be able to rest easy. Although his exposé has fallen apart, leaving a trail of anti-choice violence and tragic destruction in its wake, he and his cohorts might have been able to escape any criminal and civil liability by choosing to not publish any more videos.

But no such luck for him. NAF wants more than just the video footage.

NAF wants to know exactly how Daleiden and CMP perpetrated the operation: who was involved, who infiltrated NAF’s meetings, who funded the project, and who received reports on CMP’s activities. Daleiden and CMP have been desperately trying to avoid providing that information to NAF, which raises questions about what they are trying to hide or who they are trying to protect.

CMP and Daleiden have tried several gambits in their attempts to thwart NAF’s effort to obtain discovery, including pleading the Fifth Amendment as a blanket objection to the information requests. Judge Orrick has swatted them down at every turn, ordering for them to release the information.

Somewhere in those documents is information that CMP and Daleiden would prefer remain undisclosed, including the identity of CMP’s donors and the names of politicians, if any, with whom CMP may have colluded in its effort to take down Planned Parenthood, or who knew about the CMP operation months before the first video was published.

Also contained in the testimony and documents that CMP and Daleiden have been fighting to keep secret are the names of Daleiden’s associates and accomplices—the individuals who infiltrated NAF’s annual meetings under false pretenses. That information may lead to more juicy revelations about which, if any, anti-choice politicians, front groups, or political action committees can be tied to CMP’s smear campaign.

Several Republican politicians have copped to viewing some of the footage long before the videos were publicly released.

Rep. Trent Franks (R-AZ) admitted that he had first seen the video about a month before it was released. When asked why he did nothing about it at the time, he said, “The hope was to have as much information as possible so that the authorities could be notified effectively before the media.”

Rep. Tim Murphy (R-PA), who is a member of the House Pro-Life Caucus and chairman of the Energy and Commerce subcommittee that is investigating the videos, said in a press conference that he had seen the footage weeks prior to its release. After the press conference, CQ Roll Call asked Rep. Murphy why he had waited to mention the video’s existence. After fumbling for an answer, Murphy ended the interview, asked that he not be quoted, and said, “This interview didn’t happen.”

This in and of itself has raised some eyebrows: The fervor with which these politicians have decried the murder of “babies” and the “harvesting” of their “parts” would suggest that as soon as they became aware of Planned Parenthood committing such horrors in facilities around the country, they would have sprung into action.

But they didn’t.

Instead they waited until the Republicans could use a budget showdown as leverage to pursue their vendetta against Planned Parenthood.

If these politicians actively coordinated with Daleiden and CMP, who may have violated numerous federal and state laws, including creating fake identification and secret videotaping, they may not want their identities revealed in connection with NAF’s lawsuit. But NAF and its attorneys have been determined to ferret them out.

And they may have finally gotten their chance. After months of stalling, CMP and Daleiden were ordered to provide to NAF the identities of the “handful of supporters” that were “intimately involved in the planning and funding of the Center’s alleged conspiracy.” On Saturday evening, after their appeal was rejected by the Ninth Circuit and then the Supreme Court, CMP and Daleiden finally complied, according to sources at NAF. The information they gave is under protective order. The court may decide it should be public, but has not yet.

Given the ongoing troubles Daleiden and CMP face in federal court, it’s hard not to conclude that the Human Capital project may have been more trouble for them than it was worth.

Thus far, 11 videos have been released, and while they have riled up anti-choice advocates, so far, no government agency has been able to make any accusation against Planned Parenthood stick. Moreover, public opinion about Planned Parenthood actually improved after CMP began publishing its heavily edited videos.

Evidence suggests that even if CMP and Daleiden can manage to avoid being permanently blocked from releasing any more video footage recorded at NAF meetings, the footage won’t be the end of Planned Parenthood as they had hoped.

Despite the TRO, additional footage found its way on to the Internet thanks to Internet troll and disgraced blogger Chuck C. Johnson, and notorious hacker Andrew “Weev” Auernheimer. Johnson first claimed that the leak came from Congress, but then changed his story and claimed he received the footage from an anonymous person with the user name “patriotgeist.”

But those leaks don’t seem to be advancing the Human Capital project’s agenda, at least not with the current presidential administration in office. Earlier this month, the Senate, after multiple attempts, managed to pass a bill repealing the Affordable Care Act and defunding Planned Parenthood, but that will almost certainly be vetoed by President Obama. And each state that Planned Parenthood has sued after those states cut off the health-care organization’s funding has been ordered to reinstate the funding.

So ultimately, what was the point of this project? To inflame those who already hate Planned Parenthood? To rile up gullible people who think despite all evidence to the contrary, that Planned Parenthood is murdering babies for parts? If so, mission accomplished. But I imagine Daleiden had bigger hopes for this project—like destroying Planned Parenthood altogether. Thus far, those hopes are not panning out. And instead, Daleiden and others involved with CMP could face major consequences, including jail time.

All that remains to be seen is what Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.

We’ll have to wait and see when those names are made public.

Commentary Human Rights

How Sex Workers’ Rights Made the Mainstream

Melissa Gira Grant

When law enforcement targets sex workers and the websites they use, mainstream outlets and organizations tend to give them a pass. But with the raid on Rentboy.com, that script has flipped.

Homeland Security agents raided Rentboy.com in late August, seizing the escort ads website and displacing an estimated 10,000 advertisers. As with similar crackdowns on online sex work, sex worker rights groups were the first to draw attention to the politics behind the Rentboy raid. But not long after, they were joined by high-profile organizations like the American Civil Liberties Union (ACLU) and the editorial board of the New York Times. On Thursday last week, LGBTQ, civil liberties, and sex workers’ rights activists gathered outside the federal courthouse in Brooklyn where Rentboy staff were arraigned, calling for charges against them to be dropped and for the decriminalization of sex work—a topic that has, for the moment, become one of mainstream media interest.

The crackdown may have felt unprecedented to some, but it’s the public’s response that’s new. When law enforcement targets sex workers and the websites they use, mainstream outlets and organizations tend to give them a pass. But with Rentboy, that script has flipped. Rentboy was a website where men sought sex with men, and as such, media and advocacy groups who don’t typically bring a political analysis to sex work responded to the raid primarily as an anti-gay attack, while also calling for an end to the policing of sex workers. Some American LGBTQ organizations in particular have rallied around the political nature of the raid—in a way women’s rights groups in the United States, when women sex workers are targeted in similar raids, have not.

In fact, it might be the relative silence of women’s rights groups on the Rentboy raid that has provided space for sex workers’ rights to become the main focus of the story.

The “Pink Scare”

The Rentboy raid was the latest phase of what an anonymous sex worker, writing in the Guardian, referred to as the “Pink Scare”—an escalating panic directed at the intersection of sex work and technology. Though the focus on a men’s site is a twist, the overall agenda is not new: About one year ago, federal agents also raided the escort website MyRedBook, a site used primarily by women escorts. “Neither bust is surprising, although both landed like a punch to the face,” Charlotte Shane wrote at Jezebel. “To sex workers, it’s just more evidence of the campaign against us.”

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When law enforcement came for MyRedBook for sex work ads—and before that, Craigslist and Backpage—there was criticism, but not like this. Immediately, commentators recognized the Rentboy raid as not only an attack on civil liberties, but on sex workers’ rights, including the right to set the conditions of their work.

Perhaps this comes, in part, from the mid-August announcement from Amnesty International in support of sex workers’ rights and the decriminalization of sex work. A week before the Amnesty vote, an anti-sex work organization called the Coalition Against Trafficking Women added a raft of celebrities’ names to their letter opposing Amnesty’s proposed sex work policy before it had even been officially announced. Though the celebrity reaction failed to sway Amnesty, it did garner a response from media outlets that normally might not cover these kinds of policy changes.

Once Amnesty did vote in favor of sex workers’ rights, this attracted another wave of international press attention. Media presented Amnesty’s decision as just the latest in a long fight about sex work, framing sex workers’ position as going against “women’s groups,” as if sex workers were not themselves present in women’s groups, or were maybe even not included in the category “women.” As incomplete as this coverage was, for a moment the issue of criminalizing sex work was back in the news.

In turn, these responses primed the public to examine the impact of criminalizing sex work—rather than dwell on abstract debates—when the Rentboy raid took place. In targeting Rentboy, the New York Times editorial board wrote, law enforcement “shut down a company that provided sex workers with a safer alternative to street walking or relying on pimps.” Critics understood prosecuting online advertisers as an occupational health and safety concern for sex workers. As ACLU staff attorney Chase Strangio wrote on the organization’s website, platforms like Rentboy “provide a safer alternative to street-based work where there is less time to negotiate safety needs and higher risk of violence from both clients and law enforcement.”

Much of the coverage also framed the shutdown as an attack on the safety of the LGBTQ community, which includes sex workers. At MSNBC, Hayley Gorenberg of Lambda Legal and Harper Jean Tobin of the National Center for Transgender Equality wrote, “No one’s life has been improved by the raid on Rentboy, and thousands of lives—a great many of them LGBTQ—are ruined by the criminalization of sex work every day.”

LGBTQ and human rights groups placed responsibility for this harm firmly with law enforcement. “The criminal charges against Rentboy.com by the Department of Homeland Security and the Department of Justice are misguided and a terrible waste of resources,” the National Center for Lesbian Rights wrote in a statement.

“It is hard to see the harm done by Rentboy.com,” Grame Reid, director of Human Rights Watch’s LGBT Rights Program, wrote on the HRW website, “but it’s easy to see the harm done by the raid on society at large.”

Sex Workers’ Rights as Women’s Rights

Rewind to last summer, when federal agents shut down MyRedBook.com in a similar raid. As with Rentboy, the agents served warrants against the site administrators, charging them with violations of federal law as a result of operating a website where escorts placed their own advertisements. As in stories about Rentboy, news reports circulated somewhat surreal images of federal agents removing boxes of evidence. And as with Rentboy, advertisers on MyRedBook and those in community with them were displaced, losing peer-support networks they fostered through the website. The raid was a direct hit not only to their income, but to their ability to work collaboratively, share information, and support one another without fear of law enforcement surveilling or intervening.

But where some LGBTQ rights activists and organizations joined sex workers in condemning the raid on Rentboy, when sex workers spoke out against the MyRedBook raid—a site primarily used by women to advertise to men—women’s rights organizations said nothing. Where the attacks on Rentboy were understood by activists and organizations as attacks on the LGBTQ community, attacks on MyRedBook were met with comparative silence from feminists, along with cursory reporting and little editorial support from mainstream media.

Why this gap? It could be dismissed as just the result of ongoing “sex wars” within feminism, but there’s more to it than just differing opinions on sex work. Journalists look to feminists as authorities on sex work—something feminists have played into, often to the exclusion of sex workers themselves. This is how “feminists” and “sex workers” are often pitted against each other as discrete groups. As a result, the question of “taking sides” then trumps a struggle for rights, in the media and in the movement. We saw as much in the response to Amnesty International’s vote: the media dwelled on the “controversy” of feminist groups rather than on the actual issues at hand.

What’s lost in this reliance on seeing sex work politics only through “debates” and “sides” is where sex workers fit in. It also obscures the truth: Women’s rights groups have long held a range of perspectives on sex work and sex workers’ rights. In 1973, for example, the mainstream National Organization for Women passed a resolution calling for the decriminalization of prostitution. But that was by no means a unilateral decision: In No Permanent Waves: Recasting Histories of U.S. Feminism, scholar Stephanie Gilmore notes the diversity of approaches NOW chapters took on the subject. Some San Francisco NOW members were members of COYOTE, founded by Margo St. James as the first American prostitutes’ rights organization. (The term “sex work” would not be adopted until the end of the 1970s, after its coinage by sex worker Carol Leigh.) Kansas City and Dallas NOW members were also notably active in COYOTE, engaging in legal advocacy and contributing to its national newsletter, Coyote Howls.

By contrast, New York’s NOW members, like author Susan Brownmiller, promoted the idea that prostitution was intrinsically a form of violence against women, and that men who buy sex should be harshly punished. Sonia Ossorio, president of NOW-NYC and NOW New York State, continues this stance today, most recently opposing the Amnesty International decision. Terry O’Neill, national NOW president, also opposed Amnesty’s sex work stance.

Some feminist groups, like the international movement for Wages for Housework and their American chapters, have also stood with sex workers in the past and continue to do so. (I was part of one such effort, I should note, when on staff in 2010 at the Third Wave Foundation—now Third Wave Fund—we issued a collective statement in the wake of attacks on the online sex trade.) There are also many individual American feminist activists, writers, and community organizers who support the rights of sex workers, who may lack the power to issue organizational statements or to shape advocacy campaigns that influence media narratives.

Still, when it comes to standing against law enforcement crackdowns on sex workers, or supporting sex workers’ rights, silence from the overwhelming majority of feminist organizations is the norm. This exclusion of sex workers’ rights from feminism is supported by a range of feminist groups, not only those who explicitly oppose sex work.

There are a few reasons for this, feminist writers and organizers told me.

Some stem from what’s understood as conflict within organizations, where silence is seen as a “neutral” ground. “I was involved in NOW between 2002 and 2012. I didn’t speak publicly in support of decriminalizing sex work until well after I had resigned from my position as a national officer in 2012,” Erin Matson told me. She’s now the co-founder and co-director of the direct action group Reproaction.

“From the perspective of someone who used to be on the inside of an establishment organization,” Matson continued, “I can say there was enormous pressure not to reopen old controversies that I was told had nearly split the organization in two. Literally I was trained to say things in media interviews/public speaking appearances like, ‘there are two sides to that question’ and avoid taking a stand. I was taught that was what ‘leadership’ meant in a divided organization; to silence myself, or be responsible for driving more members away.”

In turn, this silence can create a culture of confusion and exclusion, especially for newcomers. “I’m a third-wave feminist without the gender studies credentials,” Katie Klabusich, freelance writer and host of The Katie Speak Show on Netroots Radio, told me. “I have approached established feminist spaces—places where people from mainstream, well-known organizations and talking heads gather—without preconceived biases. What was initially surprising and is challenging to navigate as an untethered feminist is the open hostility toward sex workers in mainstream, corporate, ‘white feminism.’ It’s challenging to call out for some (I do it anyway) because it can cut ties and close doors. You can’t be sure where the hostile people are and they swarm to discredit people who support sex workers. I don’t understand where the solidarity gap comes from with feminists and sex workers.”

Nicole Cliffe, co-editor of The Toast, told me she’s “a feminist who supports sex work.” She recalled her part in “discussions of sex work legality that solidify very quickly among generational lines, obviously with a handful of exceptions on either side, and it is almost impossible to convince some older, otherwise fantastic women that being pro-sex workers isn’t some nonsense cooked up by men that young dummies like me have bought, hook line and sinker.” Sex work, she says, “is a job, and a job that the vast majority of studies suggest is substantially safer for all when it’s decriminalized.”

“For me, I came to support sex worker rights because my belief in bodily autonomy means including women’s right to be a sex worker by choice,” freelance writer and feminist activist Lauren Rankin told me. “Honestly, it’s really not hard to say that. It shouldn’t be. For mainstream feminist organizations who are trying to appeal to those in power, taking a stance in support of sex workers may be too much of a risk. (When I say ‘those in power,’ I mean those who occupy patriarchal positions of power. In the case of sex workers, that would mean police officers, conservative legislators, overzealous or sexist prosecutors, or those who occupy a role in power in the prison-industrial complex more broadly.) But we should never make decisions about where we stand as feminists based on what those in power want. That’s how we know we’ve gone astray.”

It will be “a serious black mark on the feminist movement,” Rankin continued, “if we can’t get past this and support the human rights of sex workers. It’s great that independent feminist activists support it, but without structural and organizational support, it won’t be enough.”

Feminism and Rentboy

Even as feminist organizations have remained relatively absent on sex workers’ rights, feminist analysis and action goes on. On the Rentboy raid in particular, writers and commentators have approached the story with a nuanced feminist read on sexuality and gender. They pointed out that media condemning the Rentboy raid was not without its sexist over-simplifications, particularly when contrasted with previous narratives about women sex workers.

At the sex worker-run blog Tits and Sass, Morgan M. Page observed that the media depiction of sex workers affected by the raid on Rentboy was still drawn from law enforcement’s own gendered narrative about sex work. “Male sex workers and the largely male third parties who advertise their services are … ‘running a racket,’ a ‘global criminal enterprise,’ according to the press release. They are positioned as having agency in their lives and thus are not in the pitiable condition of exploited cis women.”

To that end, “The Times board advanced the notion that the men using the site—on both the buying and selling side—were rational actors who were victimized only by hectoring law enforcement,” Lily Burana wrote for The Cut. “Leaving aside the faulty assumption that all men who professionally service other men are gay, a question emerges. Why can’t the issues concerning female providers be presented so pragmatically?”

As it stands, the burst of reactive statements and quick-hit media responses, promising as they may sound to activists, are not the same thing as a lasting movement. Some activists have raised concerns that the recent calls for support of sex workers’ rights from LGBTQ organizations in the wake of the Amnesty decision and the Rentboy raid might not amount to much. “It’s not in their DNA to actually take up a cause like this,” Yasmin Nair, a writer and activist with Against Equality, told Truthout. For LGBTQ groups to support sex workers’ rights will mean more than denouncing a raid, but re-evaluating how much sex workers are understood as a core part of their movement.

“[T]he discourse in the Rentboy.com raid aftermath has been a unique ‘privilege’ granted to indoor male sex workers, one that we need to extend to all sex workers—of all genders and races—working in all circumstances,” Katherine Koster of Sex Workers’ Outreach Project USA and Derek J. Demeri of the New Jersey Red Umbrella Alliance wrote at the Huffington Post. Responding to some gay commentators’ claim that the Rentboy raid was “the Stonewall of sex work,” they observed, “If this is the ‘Stonewall’ of sex work, let it not be the aftermath of Stonewall where a privileged minority colonizes and benefits off the work of society’s ‘others.’”

This is a historic part of movement struggles that feminist activists share with LGBTQ activists. Like some LGBTQ activists, some feminists have also pushed back on the mainstream of their rights movement for over-emphasizing white, cisgender, and middle-class concerns.

Still, on sex workers’ rights, few women’s rights groups have yet to arrive at even the statement-making level. NOW’s own 1973 vote is mostly a memory. Individual feminists, as well as those striking out in new organizations and with their own media, continue to feel pushback from the mainstream for their refusal to treat sex work as a matter of debate. Perhaps big-F mainstream feminism will never address the exclusion of sex workers’ rights from their organizations. It may not matter, if the rest of the movement just progresses.

Meanwhile, the criminal and political campaign against sex workers continues apace, “nothing but a knot in the ever-expanding dragnet of state violence,” as the same anonymous sex worker wrote at the Guardian. “It is population control by other means, and it does nothing to improve our lives or our safety.”

In his words, “we can’t afford to lose even one more tool that keeps us alive in this economy of violence.”

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