Analysis Law and Policy

A Good Year for Red Umbrellas: Advances in Sex Workers Rights in 2012

Cheryl Overs

All activists have good years, bad years and the rare great one. For sex worker rights activists 2012 was a great year.

All activists have good years, bad years and the rare great one. For sex worker rights activists 2012 was a great year.

In July, the Global Commission on HIV and the Law recommended that countries repeal laws against sex work to encourage safe working conditions and access to effective HIV and health services and commodities for sex workers and clients.  

It also warned against mandatory testing for HIV and criminalization of HIV transmission. Later in the year the United Nations Development Programme released another important document, ‘Sex Work and the Law in Asia and the Pacific’. It maps the laws and policies that affect sex workers’ human rights and health in 48 countries and also recommends removal of laws against selling, buying and brokering commercial sex.

In July, the 2012 International AIDS Conference attracted up to 25,000 delegates to Washington DC, but because sex workers are prohibited from entering the United States an alternative conference hub for sex workers was held in Kolkata. Sex workers and their allies in Kolkata attended conference sessions, held a street march and produced a film and some sessions were interactive with Washington. Ironically sex worker activism being divided like this may have meant that AIDS 2012 was particularly successful for sex workers because so much attention was focused on the discriminatory and counterproductive policies of the USA on sex work, as Melissa Ditmore explained to Forbes magazine.  

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The Red Umbrella Fund was launched to strengthen the sex worker rights movement through sex worker-led organisations. The fund says that sex workers will ‘act as majority stake holders in deciding how funds are allocated.’ The Global Fund for HIV, Aids and Malaria has also taken steps toward ensuring more funding for sex workers.

Throughout the year we saw a steady stream of good news from countries. We saw discussions about legalizing sex work countries in places as diverse as Rwanda and Fiji. (See PRLI Twitter for news of sex work law reform globally). In the United States,  Human Rights Watch came out against police confiscating condoms as evidence of prostitution with measurable success. Sex workers challenged mandatory testing in Macedonia, the US, Greece, and Australia. Court cases as well as legislatures continued to make important differences to sex workers lives. We saw more evidence of this from Canada and South Africa where courts have overturned sex work laws and recognised  some sex workers rights. (See Pivotlegal Twitter for news on court cases.) In India, the Supreme Court moved to ensure that sex workers and their children can access the same services and benefits as other citizens.

Sex worker groups grew stronger all over the world, including in Africa where there is a new regional network as well as national groups in many countries. (Kenya, Uganda, Namibia, Malawi). Sex workers are now routinely invited to conferences about issues that affect them and they made a big impression at the Association for Women’s Rights in Development Forum (AWID) conference this year.

Of course like most things in life sex workers rights in 2012 can be seen as a glass half full or half empty. Oppression and violence continues. Criminalization of clients or ‘the Swedish Model’ has been taken up by more countries (including Ireland and Scotland,). Sex workers continue to complain that sensationalism and myths about trafficking drives bad laws and violent ‘raids and rescues’ —often by corrupt or abusive organisations. Calls for abolition of sex work through law enforcement sometimes seems to be increasing among governments, large media interests, powerful interest groups and celebrities alike. We have just heard that the European Women’s Lobby has added their voice to that call. Although sex workers groups have limited power to challenge those demanding stronger state action against sex work, 2012 saw some success in working with academics who are also questioning the discourses that define sex work as trafficking/exploitation. 

PEPFAR, the Presidents Emergency Plan for Aids Relief, appears on both sides of my 2012 ledger. By preventing U.S. money going to sex workers, the PEPFAR anti-prostitution pledge has done enormous damage. Hopefully it will be overturned in court in 2013. At the same time, PEPFAR has saved millions of lives, including sex workers’, with Anti Retroviral Treatment for HIV. Although there are some good results about HIV prevention in some places sex workers remain very vulnerable to HIV in many places. Worrying spikes in HIV and STI persist as well as issues such as significant numbers of sex workers not collecting HIV results. This reminds us that stigma, poverty, criminalization and abuse continue to form powerful barriers to access to services.   

The year ended on a bright note with an activists meeting in Sydney to discuss decriminalization of sex work. That takes us into 2013 with confidence that the sex workers rights movement will continue to build on its successes and lessons and be ‘part of the solution.’    

Commentary Human Rights

The Democratic National Convention Was a Remarkable Victory for Disabled People

s.e. smith

This year's convention included disabled people every evening, as part of a larger inclusive policy that made 2016 a banner year for disability rights activists.

Read more of our coverage of the Democratic National Convention here.

On Thursday night, Hillary Clinton formally accepted the Democratic Party’s nomination for president. Her speech included many of the elements one expects from a nominee, but there were some standout moments—like when she mentioned disability rights, which she did repeatedly.

Clinton integrated disability into her discussion of her record, talking about her work to ensure that disabled children have the right to go to school and bringing up the health-care needs of disabled youth. Her commentary reinforced the fact that she has always cared about disability issues, particularly in the context of children’s rights.

But she did more than that. She referenced shortages of mental health beds. She explicitly called out disability rights as necessary to defend. And at one point, she did not mention disability, which in itself was radical. When she outlined her plans for gun reform and clearly stated that she wanted to keep guns out of the hands of people who shouldn’t have them, she referenced people with criminal histories and terrorists, but not mentally ill people, who have been fighting a surge in stigma thanks to perennial (and wildly incorrect) assertions that mental illness causes violence. That omission was clearly deliberate, given the meticulous level of crafting that goes into writing one of the most important speeches of a presidential candidate’s career.

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The nominee’s speech would have been remarkable on its own, but what made it truly outstanding is that it was far from the first appearance of disability at this year’s Democratic National Convention (DNC). The convention included disabled people every evening as part of a larger inclusive policy that made 2016 a banner year for disability rights activists, who are used to being invisible. These kinds of appearances normalized disability, presenting it as a part of some people’s lives and a source of pride, not shame or misery.

On Monday, for example, disability rights activist Anastasia Somoza rolled out to give a sharp, compelling speech that didn’t cast disability in a tragic or exceptional light. She wasn’t the only wheelchair user to appear on the DNC stage—Paralympic athlete Mallory Weggemann led the pledge of allegiance on a different evening. Dynah Haubert, an attorney for Disability Rights Pennsylvania, took the stage on Tuesday. Nor were wheelchair users the only disabled people represented. Ryan Moore, a longtime friend of Clinton’s, spoke about health care and his experiences as a man with spondyloepiphyseal dysplasia congenital syndrome, a form of dwarfism. Connecticut Gov. Dannel Malloy talked about his learning disabilities. Musician Demi Lovato, who has bipolar disorder, took on mental health.

Former Iowa Democratic Sen. Tom Harkin, a nondisabled man who played an instrumental role in the push to pass the Americans with Disabilities Act (ADA) in 1990, taught the crowd sign language during a lively speech about the fight for disability rights on Tuesday, the 26th anniversary of the landmark legislation.

On Wednesday night, former Rep. Gabby Giffords (D-AZ) strode out onto the DNC stage in Philadelphia, smiling and waving at the crowd, to make a few short remarks. “Speaking is difficult for me,” she concluded, “but come January 2017 I want to say these two words: ‘Madam President.'” Her speech was about gun violence—a subject with which she’s intimately familiar after being shot in the head in 2011.

This level of representation is unprecedented. Some speakers, like Somoza, explicitly talked about disability rights, putting the subject in the spotlight in a way it’s never been at previous conventions. Others, like Giffords, came up on stage to talk about something else entirely—and happened to represent disability while they were at it. Similarly, Rep. Tammy Duckworth (D-IL), a decorated combat veteran and double amputee, talked about military policy.

This is a striking contrast from the treatment of disability at previous Democratic National Conventions: When disabled people have appeared, it’s often been in the form of a lackluster performance that objectifies disability, rather than celebrating it, as in 1996 when former actor Christopher Reeve framed disability as a medical tragedy.

Disability rights activists have spent decades fighting for this kind of representation. In 1992, two years after the passage of the ADA, the platform included just three mentions of disability. This year, the subject comes up in 36 instances, woven throughout the platform for an integrated approach to disability as a part of society, rather than as something that needs to be walled off into a tiny section of the platform, tokenized, and then dismissed.

In the intervening years, disabled people in the United States have fought for the enforcement of the ADA, and taken the right to independent living to court in 1999’s Olmsted v. L.C., which was namechecked in the 2000 platform and then forgotten. Disabled people advocated to have their rights in school codified with the Individuals with Disabilities Education Act (IDEA) in 2004, pushed for inclusion in 2010’s Affordable Care Act, and are fighting to pass the Community Choice Act and Disability Integration Act (DIA). Disability rights in the United States has come a long way since 1990’s infamous Capitol Crawl, in which disability rights activists dragged themselves up the steps of the U.S. Capitol, pleading with Congress to pass the ADA.

And as activists have pushed for progress in the courts and in Congress, disability rights have slowly become more prominent in the Democratic party platform. The ADA has been a consistent theme, appearing in every platform since 1992 alongside brief references to civil rights; historically, however, the focus has been on disability as a medical issue. The 1996 platform introduced Medicare, and health care in general, as issues important to the disability community, a refrain that was reiterated in years to come. In numerous years, Democrats addressed concerns about long-term care, in some cases positioning disabled people as objects of care rather than independent people. Disabled veterans have also played a recurring role in the platform’s discussion of military issues. But beyond these topics—again, often approached from a dehumanizing angle—and the occasional lip service to concerns about discrimination and equal rights, until the 2000s, education was the only really consistent disability issue.

In 2000, however, the Democrats went big, building on eight years under President Bill Clinton, and the influence of his then-first lady. For the first time, disability wasn’t simply lumped under “civil rights.” The platform explicitly called out the need for protection from disability hate crimes, but it also began to introduce the idea that there were other issues of relevance to the disability with a discussion of the digital divide and the obstacles that held disabled people back. Almost 30 years after the passage of the Rehabilitation Act of 1973, which barred disability discrimination by government agencies and contractors, the Democrats were starting to embrace issues like accessibility and independent living, which also played a prominent role in 2000.

It was a hint that the party was starting to think about disability issues in a serious way, especially when in 2008, the Democrats discussed the shameful delay on ratification of the United Nations’ Convention of the Rights of Persons with Disabilities, took on the Community Choice Act, talked about the need to enforce IDEA, and, again for the first time, explicitly addressed voting rights issues. By 2012, they were also calling out discriminatory voter ID laws and their disproportionate effect on the disabled community.

That’s tremendous, though incremental, progress.

And this week, the efforts of a generation of disability rights activists are on display everywhere in Philadelphia, where Daily News columnist Ronnie Polaneczky observed that accessibility is a top priority across the city. The DNC is providing expanded accessible seating, wheelchair charging stations, service dog relief areas, Braille materials, closed captioning, American Sign Language interpreters, medication refrigerators, and more. That’s radical inclusion at work, and the result of incredible efforts by disability rights organizers—including the 400 delegates who disclosed disabilities.

Those same organizers have been hounding the presidential candidates, holding them accountable on disability over and over again. They’ve brought up concerns about independent living, wage disparities, education, access to services, accessibility, hate crimes, reproductive rights, the “marriage penalty” and government benefits, and casual disablism in campaign rhetoric and practices. Advocates leaned on the Clinton campaign until it began captioning its content, for example. RespectAbility sent journalists out on the trail, #CriptheVote organized Twitter, and Rev Up encouraged people to register to vote and get involved. The disability community may be more explicitly politically active this year than ever before, and the DNC has been responding accordingly.

Clearly in consultation with disability rights activists, the Democrats have brought a host of new issues into this year’s platform, acknowledging that disabled people are part of U.S. society. Some of the many issues unique to this year’s platform include: abolition of the subminimum wage, concerns about economic opportunities with an explicitly intersectional discussion of the racial wealth gap, affordable housing, accessibility at the polls, the role of disability in the school-to-prison pipeline, and the need for more accurate Census data.

Notably, in a platform that has loudly called for a Hyde Amendment repeal and pushed for other abortion rights, the Democrats have also reinforced the need for access to reproductive health for disabled people, a revolutionary clause that’s gone virtually unnoticed.

This is a platform—and convention—of aggressive inclusion, and it reflects a victory for disabled people in the United States. It does still lack some components the disability community would like to see, like a shoutout to the DIA, which Clinton supports. This is, however, the start of what looks like a robust and real relationship between the Democrats and the disability rights community.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.