For the past decade, progressive discourse around sex work has revolved around which comprehensive national legal approach—decriminalization or legalization—is most effective. As politicians in the United States engage in perpetual conflict over which overarching paradigm we should strive towards, they ignore the impacts of extant laws on sex workers today. Common-sense reforms of particularly harmful laws are politically feasible, materially impactful, and extremely urgent.
Anti-loitering laws are one clear target for repeal because they are notoriously vague. Consequently, these statutes give police license to apprehend anyone they assume to be involved in sex work with little to no evidence. In simple terms, anti-loitering laws allow police to arbitrarily criminalize a woman for wearing a skirt too short or looking out of place on a street corner.
These laws, often referred to as “Walking While Trans” laws, disproportionately impact people of color, transgender women, and, most glaringly, transgender women of color. In 2018, 91 percent of people arrested under the New York City anti-loitering statute were Black or Latino. Although it is hard to know exactly how many of those targeted are transgender because police departments often misgender trans women, activists and socially-conscious lawmakers argue that the figure is exorbitantly high. Solicitation criminalization also particularly harms undocumented immigrants, who can be turned over to US Immigration and Customs Enforcement (ICE) upon arrest.
Citing their discriminatory impacts, lawmakers in Seattle, New York, and California have recently repealed anti-loitering laws. Activists must continue this momentum by not only pushing for the repeal of anti-loitering laws in other states and municipalities, but also highlighting other particularly discriminatory policing practices, such as the use of condoms as evidence for prostitution. A 2011 Human Rights Watch Report found that even in instances in which charges were not ultimately filed, police harassed individuals and forced them to dispose of the condoms. These practices have led to many sex workers decreasing their use of protection: 16 out of 35 individuals interviewed by the Urban Justice Center said they have refrained from carrying condoms when working out of fear of getting in trouble with the police.
Criminalizing protection not only puts sex workers at a higher risk of contracting disease, but also hurts taxpayers. Why spend hundreds of millions of dollars promoting condom usage only to destroy thousands of condoms per year? Why pour millions of dollars into the treatment of STIs only to disincentivize safe sex? Realizing the disastrous public policy consequences of deterring contraception use, New York stopped confiscating condoms in 2014, and California prohibited the introduction of condoms as evidence in sex work prosecutions in 2019. It is now time for every other state to follow suit.
Even the legal definitions of prostitution-related activities can harm sex workers. Most states have made profiting from prostitution illegal in order to prevent managers (pimps) from abusing workers. However, the language of the legislation used to describe this crime is so vague that it prevents sex workers from hiring bodyguards or drivers and paying rent to landlords. For example, the Florida penal code states that it is illegal for any person to receive payment from someone if they have a “reasonable belief” that the person is a sex worker. Thus, once landlords discover that their tenants are sex workers, they often serve eviction notices—sometimes in a manner that violates tenants’ rights—out of fear of arrest and seizure of the tenant’s previous rent payments.
Similarly, New York penal code 230.40 criminalizes people who control the premises of prostitution if they do not make “a reasonable effort to halt or abate such use.” It also prohibits brothel-keeping, which it defines in penal code section 230.25 as “managing, supervising, controlling, or owning … [an] enterprise involving prostitution activity by two or more prostitutes.” This too is intended to prevent abuse. However, it prevents sex workers from living or working together, isolating them, and thus putting them at greater risk of harm. The definition of brothel-keeping could be revised to allow sex workers to pay rent or work together without decriminalizing sex work as a whole.
There are ways for sex work to be safe even if it remains illegal. While completely legalizing prostitution does not have strong support, this should not prevent our elected officials from taking targeted action in order to help sex workers—as marginalized individuals—stay safe. They can begin by focusing on eliminating legislation and policing practices that are ineffective at their intended purpose and actively harm both sex workers and society at large.