Analysis Human Rights

Steps Forward—and Setbacks—for Sex Workers’ Rights

Juhu Thukral

This summer, the effort to pass the Women's Equality Act in New York and the Supreme Court's decision involving the anti-prostitution pledge that applied to global funding to fight HIV and AIDS had implications for sex workers' rights.

This summer was a busy one for issues relating to sex work and trafficking in persons. In late June, the New York state legislature, despite much advocacy and pressure, did not pass Gov. Andrew Cuomo’s ten-point Women’s Equality Act (WEA) into law. Cuomo had hoped to use the WEA as a multi-platform law that would advance the rights, health, and well-being of women across a number of critical concerns. He brought together issues around reproductive rights, workplace discrimination, and trafficking in persons under one umbrella. The effort supported the fact that these different aspects of gender equality are inherently tied together.

Around the same time, the U.S. Supreme Court announced its ruling in a case involving the anti-prostitution pledge that applied to global funding to fight HIV and AIDS. The Court made its decision on First Amendment grounds, stating that Congress can use the money it spends to prioritize certain types of goals and programs over others, but it can’t go so far as to require groups receiving grants to actually adopt and voice a particular viewpoint. This was an important and crucial decision, both because of the impact it had on health and empowerment programs around the world, and because the Court’s logic and reasoning did not focus on hysteria and false morality about sex work, but on the potential limits of government action in the context of free speech.

These developments in law and policy on issues relating to the rights and health of sex workers offer a window into the current arc of the movement for sex workers’ rights. While both addressed important issues of the day that affect all of us—not just sex workers and their allies—like HIV and trafficking in persons, they played out in very different ways.

The Women’s Equality Act has been very much removed from the sphere of sex workers and their rights, health, or empowerment. The WEA affected sex workers in that one of its goals was to strengthen human trafficking laws, but the bill language focused almost exclusively on criminal penalties on prostitution. While every law can be improved and developed in new and innovative ways, there was little recognition that New York already has one of the strongest anti-trafficking laws in the country; it includes appropriate penalties and offers needed services to survivors.

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Initially, it was a challenge for anti-trafficking advocates who did not have an anti-prostitution agenda to get information on the WEA language. So not only were sex workers left out of advocacy on a bill that affected them directly, but even advocates who either support or have neutral positions on the rights of sex workers were considered outsiders.

Ultimately, the WEA failed because of its provisions on abortion—possibly the only issue more controversial and alienating than the rights and dignity of sex workers—but it was clear that the concerns and voices of all women were not going to be given equal weight when it came to trafficking in persons, which certainly won’t be stopped through criminal laws targeting prostitution.

The anti-prostitution pledge, in contrast, was introduced about a decade ago, and sex workers, public health advocates, and human rights lawyers worked together in different ways to document and publicize the dangers of a policy that required the very organizations offering help to sex workers to denounce them. The advocacy was not always seamless, and the culmination of this case in a Supreme Court decision based on the First Amendment, rather than on the rights and dignity of sex workers, reflects that. Sex workers’ rights advocate Tracy Quan notes, “Without sex workers diligently building a movement over many decades, this lawsuit would not have happened. Sex workers have been loudly protesting the anti-prostitution pledge since 2003, but our involvement in the Supreme Court challenge was carefully handled and rather muted.” The efforts were far from perfect, and the decision itself only affects U.S.-based recipients of funding, but it was always clear that sex workers would and should have a voice in the debate.

Everyone should have a fair chance to thrive and pursue opportunities in life. When people are trafficked, they are forced, tricked, or coerced to perform work against their will. Trafficked persons are made to live in a climate of fear. They often experience isolation and invisibility, are subjected to abuses of power by their employers, and have little or no access to help.

We need solutions that support the real needs of trafficking survivors, and of people at risk for HIV. Sex workers are making enormous progress in terms of advocacy and policy impact. But there is still a long way to go. As long as we do not examine our sexual attitudes and the policies that stem from a misunderstanding of our rights around sexual behavior and how to protect them, policymakers will continue to confuse sex work with trafficking and implement harmful policies on HIV without consequence for themselves. Sex workers’ rights advocates have an opportunity over the coming years to keep policymakers on their heels as we continue to build this strong global movement and bring to fruition the actual needs, lives, and dignity of sex workers everywhere.

News Politics

Blackburn Calls for State-Level Criminal Investigation Into Fetal Trafficking

Christine Grimaldi

A public university and abortion clinic in New Mexico are the latest targets in a congressional investigation approved by Speaker Paul Ryan and condemned by a House Democrat as "a McCarthy-like witch hunt."

The New Mexico attorney general’s office received nearly 300 pages of documents from Rep. Marsha Blackburn (R-TN) Thursday allegedly incriminating the University of New Mexico (UNM) and Southwestern Women’s Options, a prominent abortion clinic, in fetal tissue trafficking. Blackburn’s goal: Provoke a state-level criminal investigation into the dubious allegations.

As Blackburn prepared her latest call for outside reinforcements in the U.S. House of Representatives investigation’s thus far unsuccessful search for a market in “baby body parts,” House Speaker Paul Ryan (R-WI) separately broke his silence on her tactics. Ryan said in a written letter he trusts Blackburn to conduct the so-called Select Investigative Panel on Infant Lives “in a way that will focus on the facts and also protect the privacy of those involved.”

The extensive documentation sent to New Mexico Attorney General Hector Balderas (D) appears to replace provider and researcher names in some areas and redact them in others, honoring Blackburn’s pledge to keep such information confidential. Earlier this month, Blackburn failed to redact at least two dozen researchers’ names and contact information in publicly available documents that she sent to the U.S. Department of Health and Human Services as part of a request for a federal abortion inquiry.

“We can confirm the Office of the Attorney General has received a public referral and this matter is under review,” attorney general spokesperson James Hallinan said in an emailed statement to Rewire. “All complaints received by the Office of the Attorney General are fully reviewed and appropriate action is taken.”

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If precedent is any indication, New Mexico is unlikely to find any wrongdoing involving fetal tissue donations. Arizona recently became the 13th state to find no substance to such allegations

Blackburn’s criminal referral appeared to cut other corners, copying state Rep. Steve Pearce, rather than Democratic Rep. Michelle Lujan Grisham, who represents Albuquerque—making UNM and Southwestern Women’s Options her constituents, not his.

Grisham’s spokesperson did not return requests for comment.

Blackburn alleged in the documents that the university and abortion clinic violated state and federal law. The university “aggressively engaged in expanding abortion” and in turn, received fetal tissue from the abortion provider, she said. Last year, Rewire reported that the UNM Health Sciences Center ended its decade-long relationship with Southwestern Women’s Options because the clinic didn’t perform an adequate volume of abortions to train residents and fellows, contrary to the victory anti-choice activists claimed at the time.

The university countered that Blackburn misinterpreted the New Mexico law, which does not preclude donating fetuses from elective abortions that occurred at the clinic. “Additionally, UNM has never paid for this tissue—it has been provided free to the University of New Mexico for medical research,” according to a statement from the UNM Health Sciences Center.

Southwestern Women’s Options is listed as a member in good standing with the National Abortion Federation, and follows the federation’s evidence-based clinical policy guidelines.

“For more than 40 years, Southwestern Women’s Options has provided high-quality care for New Mexico women,” said Southwestern Women’s Options spokesperson Heather Brewer in an email to Rewire. “We are committed to continuing to provide compassionate care to women in our community.”

Rep. Jan Schakowsky (D-IL) condemned the panel’s course of action.

“This so-called ‘criminal referral’ is further evidence that this investigation is nothing more than a wholly partisan attack on law-abiding doctors and researchers,” she told Rewire in an email.

Republican leadership, to the contrary, indicated that just cause exists for the overall investigation.

Ryan gave his blessing in a written response to Schakowsky, who recently introduced a resolution to disband what she has repeatedly called a “witch hunt.” Rewire obtained Ryan’s letter late Thursday, shortly after Schakowsky’s select panel staff received it.

Ryan repeated several key Blackburn talking points to justify the panel’s continued work. He said documents at the panel’s April hearing on fetal tissue “pricing” indicated that some entities may have violated the federal ban on selling fetal tissue. Many of the documents, however, appear to have been dubiously sourced from the Center for Medical Progress (CMP), the anti-choice front group that released widely discredited videos alleging that Planned Parenthood profited from fetal tissue donations. Democrats on the select panel have warned that Blackburn is relying on additional information from the anti-choice Protest ABQ, which is run by former Operation Rescue operatives.

For instance, Ryan referenced the panel’s discovery of “a website that allowed a researcher to order any baby part imaginable at a given gestation period and proceed to check out.”

“Such a practice clearly threatens the human dignity,” he said.

Among Blackburn’s evidence from the pricing hearing, Exhibit C3 purportedly shows such an order form—and it’s nearly identical to what was shown in the CMP videos. Blackburn again displayed the CMP-sourced order form as she delivered a conservative call to action against “baby body parts” in June at the faith-based Road to Majority conference.

Ryan also countered Schakowsky’s claim that the investigation is hurting the research community, despite what researchers, fearing for their safety, privacy, and job security, told Rewire in recent interviews.

Ryan said he lacked the power to disband the panel, though he would refuse to do so regardless of the circumstances. Among the reasons he won’t act: Under the informal “Hastert rule,” named for former Speaker Dennis Hastert (R-IL), currently imprisoned after pleading guilty to charges related to sexually abusing minors, a majority of the majority must agree to vote on a bill. Ryan’s pledge to abide by the Hastert rule helped him win over the ultra-conservative Freedom Caucus, which would certainly stymie any attempt to end the investigation, along with more moderate House Republicans who almost unilaterally oppose abortion as well.

Schakowsky criticized Ryan’s response.

“I am disappointed that the Speaker has chosen to parrot Republican talking points on the investigation instead of addressing our concerns in a meaningful way,” Schakowsky said in an email to Rewire. “While there is no evidence of wrongdoing by researchers or doctors, we have concrete proof of the chilling effect on life-saving research. This McCarthy-like witch hunt is putting lives and livelihoods at risk. The Speaker has the ability to shut down this dangerous Panel and he should do so at once.”

Commentary Sexual Health

Building Solidarity to Overcome Invisibility: Sex Workers and HIV-Focused Activism

Anna Forbes

Even as federal agencies and public health organizations have taken steps to address HIV in vulnerable populations, sex workers have been left out of the conversation.

Researchers from the Centers for Disease Control and Prevention (CDC) in February published a study of HIV rates among female sex workers in the United States. The authors of the review—which was limited to female sex workers because research on genderqueer, transgender, and male sex workers in the United States is almost nonexistent—acknowledged that the prevalence of HIV in this group is high. They also noted, however, that they had little material to work with: The paper reviewed 14 studies, of which only two were done in the last decade. Thus, the authors note, “The burden of HIV among this population remains poorly understood.”

This shocking paucity of recent data is a result, in large part, of the withdrawal of federal funds for research on “prurient” topics imposed during the George W. Bush administration. That shift to the right had a chilling effect on the federal HIV response as a whole—an effect that has been most enduring with regard to sex workers. Overwhelmingly, even as federal agencies and public health organizations have taken steps to address HIV in other vulnerable populations, sex workers have been left out of the conversation. This omission is one that HIV-focused activists, at the urging of sex worker rights organizations, are starting to notice.

Most countries recognize men who have sex with men (MSM), people who inject drugs, and sex workers as their primary “key populations”—defined, in United Nations terms, as “groups of people who are more likely to be exposed to HIV… and whose engagement is critical to a successful HIV response.” The U.S. government, however, recognizes the first two, among others, as key populations, but not sex workers. Virtually no federally funded HIV prevention and care services are targeted specifically to sex workers in the United States, although, ironically, U.S. funding does support some good HIV prevention programming for sex workers overseas.

Here at home, they remain largely overlooked. The CDC’s HIV Behavioral Surveillance System (HBSS) only alludes to sex workers indirectly as a subgroup of “heterosexuals at risk of HIV infection” who “exchange sex for money or drugs”—a designation that, obviously, ignores their diversity on multiple levels.

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Meanwhile, the National HIV/AIDS Strategy Update, a federal blueprint for our national response written by the Department of Health and Human Services’ Office of National AIDS Policy, mentions gay and bisexual men 35 times, youth 23 times, transgender people 19 times, people who inject drugs 18 times, and incarcerated people twice. It does not mention sex workers—as such or by any euphemism—even once.

This virtual invisibility was reflected at this year’s National HIV Prevention Conference in Atlanta, billed as the “preeminent conference for scientists, public health officials, community workers, clinicians, and persons living with HIV.” Of the hundreds of abstracts presented via panels, posters, and roundtable discussions, only four mentioned sex workers as a distinct and relevant population to consider at this conference.

At a “listening session” on the NHPC’s third day, I asked Conference Co-Chair Jonathan Mermin—the director of the CDC’s National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention—about the lack of data on sex workers and HIV. He acknowledged that the CDC has not collected the kind of data on HIV vulnerability among sex workers that it collects on other key groups.

This lack of inclusion is nothing new. In 2012, when the massive bi-annual International AIDS Conference took place in Washington, D.C., many foreign attendees with sex work or drug-using histories couldn’t get U.S. visas to attend.

Four blocks away from the two adjacent luxury hotels where NHPC was held, the HIV Prevention Justice Alliance (HIV-PJA) convened a free “People’s Mobilization on the National HIV/AIDS Strategy Counter Conference.” Nearly 100 participants signed in at its meeting space—some of them unable to afford NHPC registration and some dividing their time between the two conferences.

In the middle of the NHPC’s opening plenary, AIDS Foundation of Chicago organizer Maxx Boykin walked unannounced onto the stage, along with seven other Counter Conference participants, to protest the omission of sex workers from the National HIV/AIDS Strategy Update. “At this conference we talk about getting to zero new infections and ending the epidemic,” he said, “but we will never get there without tackling sex workers’ rights.” The group left the stage to substantial applause.

In contrast to the NHPC, the Counter Conference offered a striking example of HIV-focused advocacy groups joining sex worker rights organizations to address this exclusion. In the process, the collective also examined how structural factors such as housing, gentrification, and displacement affect people’s HIV risk and their HIV prevention and treatment choices.

Rather than choosing among hundreds of presentations, Counter Conference attendees met in plenary with experts leading discussions on topics that included the intersections of HIV criminalization, mass incarceration, and the war on drugs; the barriers to reproductive and sexual health care facing youth and women living with HIV; the escalating difficulty of getting HIV prevention and care in southern states without Medicaid expansion; the links between unemployment, economic injustice, and disparities in HIV-related outcomes; the health care and quality-of-life challenges faced by transgender people; and the need to develop solidarity between HIV and sex worker rights advocates.

At the latter panel, four leaders in sex worker rights organizations recommended that HIV activists learn more about their local and state laws on sex work. Magalie Lerman, representing the Sex Workers Outreach Project, observed that “the political and social environment in the [United States] contributes to negative outcomes for people in the sex trade” in all kinds of ways.

It is not unusual, for example, for police and prosecutors to use the possession of multiple condoms as evidence of someone’s intention to sell sex. This practice has been exposed and subsequently prohibited in a few cities, but is still a common practice elsewhere. It both discourages condom use—thus heightening HIV risk—and provides another tool for unjustly arresting marginalized people, including sex workers and those profiled as sex workers, which frequently includes transgender women of color.

Lack of funding for sex worker-specific HIV prevention and outreach work is another issue where joint advocacy is needed. Lerman urged HIV-focused organizations to “deal us in on HIV prevention funding streams” and collectively demand resources to support local, peer-led empowerment programs that have proven effective in reducing HIV rates. Such projects received less than 1 percent of all HIV prevention funding worldwide in 2009, the most recent year for which data is available. Domestic data on funding for this is, of course, nonexistent.

Another high priority was staff training and program adaptations to make HIV service agencies more accessible to sex workers. Panelist Deon Haywood represented Women With a Vision, a New-Orleans based organization providing harm reduction and HIV prevention services to Black women since the 1980s. She mentioned the need to “make the people running the organization look more like the people coming through the door.” She said this could be done by hiring peer counselors with lived experience in the sex trade and ensuring that their jobs were designed with room for advancement.

Panelist Cassie Warren from Chicago’s Howard Brown Health Center, meanwhile, talked about how agencies could expand their hours, locations (using mobile van services), and strategies to reach street-based youth engaged in survival sex. While the process of investigating and resolving existing barriers to care is labor-intensive, she said, HIV-focused service providers can’t expect to engage with high-risk youth without doing such work.

Building cross-sectoral communication and trust is another major challenge. Panelist Stella Zine, founder of the peer-driven support group Scarlet Umbrella Southern Art Alliance, pointed out that sex work can be a “heavy term” for some people. She urged participants to learn how to talk about HIV and sex work carefully, using language acceptable to people who need services but do not self-identify as sex workers.  

When working with organizational partners rather than clients, on the other hand, Haywood cited a willingness to name the issues on the table explicitly—and to point out incidents where issues are misnamed or avoided—as essential to solidarity building. For example, Haywood commended the Counter Conference for bringing an explicit racial analysis to its discussions, an aspect she found missing at the NHPC.

The central theme of the session was “nothing about us without us.” Having been ignored and forcibly silenced in so many other settings, the panelists emphasized that sex worker rights advocates will partner with allies willing to ensure that sex workers are at the table whenever funding, policy, and strategy decisions affecting sex workers are under discussion.

After the sex workers panel, some of us walked back to the NHPC to attend the “listening session” mentioned above, where I raised the issue of sex worker invisibility. Dr. Mermin responded by acknowledging the gap and advised us of the CDC review published in February. He warned us, however, that this new paper would not contain the kind of key population data on sex workers that is being collected in other countries.

Indeed, the CDC’s website currently states that “there are few population-based studies of sex workers in the United States or globally” (emphasis added) due to their illegal status. In international terms, that assertion is badly outdated. A plethora of studies on sex workers and HIV have been published in the last five years, showing clearly that punitive approaches to sex work exacerbate HIV spread. Public health and rights-based approaches, on the other hand, not only reduce HIV rates substantially, but are cost-saving to boot.

Silencing groups by excluding them from pivotal conferences and omitting them in national strategic planning are forms of overt discrimination, as is simply refusing to include them accurately in population surveys. If uncounted, they do not officially exist and do not have to be served. This political decision results in an absence of much-needed evidence.

Dr. Mermin added, however, that we don’t have to wait for solid numbers or data to increase national efforts to deliver services successfully targeted to sex workers. Was he signalling a federal shift, at last, toward the public inclusion of sex workers in our national HIV response? Hard to tell—but the odds of that occurring are undoubtedly better if pressure for such inclusion escalates.