Empowerment in the Shadows: Redefining Sex Workers' Identity

https://www.workers.org/2024/07/79579/

I. Introduction

The debate surrounding sex work in India has long been a contentious issue, rooted in the country’s cultural and traditional stigmas surrounding sexuality. The public response to sex markets and sex labour has been fragmented, stemming from the obscurantist sexual moorings of orthodoxy. At the heart of this issue lies the mysterious alienation of labour and sex, which has created an internal paradox that has yet to be resolved.

To better understand the complexities of sex labour, there are three prominent frameworks to consider. The first framework views sex work as a deviant behavior, steeped in traditional stigma and anomie. The second framework sees it as a fundamental form of gender relations that is vulnerable to oppression and violence against women. The third framework focuses on the empowering component of sexual commerce.

Historian Gerda Lerner’s research has linked the historical growth of the sex market to the sexual control of all women in archaic regimes and its relationship to female servitude. Poverty has often been a driving force behind women’s sexual labour in ancient cultures, where they were forced to cater to the sexual desires of rulers and men of higher social status. In such societies, heterosexist marriage was seen as essential to maintaining women’s virginity, and women were often ritually swapped as simple gifts among families in patriarchal kinship systems.

Despite the fact that sexual interactions are sanctioned in public morality discourses only in specific socially specified settings, such as marriage, sex outside of marriage is often considered “perverse,” “immoral,” and “sinful.” The exercise of women’s sexuality is viewed as a danger to societal stability. Consequently, there are taboos about the stigma and demonization of sex employment, which hinders its recognition as legitimate work.

In this article, the authors attempt to delve into the topic of unionization of sex workers in India, exploring whether they are victims or labourers, and the possible implications of such a move. The authors will examine the challenges faced by sex workers, including the lack of legal protection, societal stigma, and vulnerability to exploitation and violence. The authors will also explore the potential benefits of unionization, such as greater bargaining power and improved working conditions. Moreover, and  will analyze real-life case studies from countries that have implemented ‘unions for sex workers’ to understand its impact. Ultimately, the authors  hope to provide a nuanced understanding of the complexities surrounding sex work in India and the potential role of unionization in improving the lives of those who work in the industry.

II. Global Legal Perspective Of Sex Work

The global legal perspective on sex work is diverse, with four main approaches to sex work legislation. ‘Prohibition’ is one such approach, which involves criminalizing sex work. ‘Abolition’ of sex work is another, while ‘Regulation’ typically entails government rules and licenses. The fourth approach is decriminalization, which removes all criminal prohibitions for consenting adults purchasing or selling sexual services.

These approaches have been widely debated, particularly by feminists who center their arguments around sex workers’ exposure to systemic patriarchal exploitation. It is important to recognize that sex work can involve varying degrees of compulsion, resistance, and agency. While the inherent risk of violence and oppression cannot be ignored, protecting the rights of sex workers is critical.

Punishing women for selling sex exacerbates their victimization, and criminalization can drive sex workers underground to protect consumers. Countries like Germany and the Netherlands have implemented complicated regulatory regimes to mitigate the negative aspects of sex work rather than push for its abolition. In contrast, New Zealand has embraced the decriminalization strategy.

To understand the impact of different legal approaches, let’s explore specific case studies:

1. Germany: In 2002, Germany introduced legalized prostitution, allowing sex workers to access social security and healthcare benefits. The move aimed to improve working conditions and reduce exploitation. However, critics argue that legalization led to an increase in human trafficking and forced prostitution.

2. Sweden: In 1999, Sweden adopted a unique approach known as the “Nordic Model,” which criminalizes buyers of sex while decriminalizing sex workers. This approach aims to reduce demand for prostitution and protect vulnerable individuals from exploitation. Supporters claim that it has resulted in decreased demand for commercial sex, while opponents argue that it pushes sex work underground and makes it riskier for sex workers.

3. New Zealand: In 2003, New Zealand decriminalized sex work, granting sex workers legal protection and allowing them to operate independently or in small collectives. Studies suggest that this approach improved safety and health outcomes for sex workers and reduced exploitation.

These case studies demonstrate the complexities of sex work legislation and its impact on sex workers’ safety and rights. The unionization of sex workers can be seen as a step towards securing their rights and creating a safer work environment, but it also requires a legal framework that recognizes their profession and provides them with the necessary protections and benefits.

III. From Taboo to Triumph: Embracing Prostitution as a Profession

The legality of prostitution as a profession varies across the globe, and India is one country where the Supreme Court has declared sex work a legitimate profession. The court’s decision in 2021 stated that sex workers are entitled to equal legal protection and that criminal law must apply equally in all circumstances, regardless of age or consent. The landmark ruling supports the dignity of sex workers and allows them to enjoy the same privileges and services as any other citizen. Previous court rulings have recognized sex workers’ right to life and dignity under Article 21 of the Indian Constitution. However, these rulings have been protectionist and focused on treating sex workers as victims.

The recent ruling, in Kajal Mukesh Singh and Ors. vs. State of Maharashtra, recognizes the basic freedom to pursue a chosen career and establishes a non-discriminatory humanitarian framework of entitlement for sex workers. This ruling reaffirms the Constitution’s commitment to every citizen’s right to live in dignity, including those who work in the sex industry.

It is important to note that the responsibility of the police is limited to not interfering with or prosecuting consensual adult sex workers. This approach redirects governmental action to be protectionist and welfare-focused on sex workers, rather than punishing them for their occupation. The recent ruling defends the fundamental human decency and dignity of sex workers and their children.

While some may argue that the denunciation of prostitution ignores the greater good of society, it is essential to recognize the rights of women who work in the sex industry.

Real-life case studies from other countries can provide further insight:

1. Netherlands: The Netherlands is known for its “Red Light District,” where sex work is legalized and regulated. Sex workers have access to health services, and there is a focus on ensuring their safety. However, critics argue that legalization has not entirely eradicated exploitation and trafficking.

2. Australia: In some states of Australia, sex work is decriminalized or regulated. Sex workers have the right to form unions and advocate for their rights. This approach has resulted in improved working conditions and access to support services.

These case studies demonstrate how legal recognition of sex work can impact sex workers’ rights and well-being. The recent ruling in India is not the only case where sex workers’ rights have been recognized. The Calcutta High Court also stated that no sex worker exploited for commercial sex may be prosecuted under the Immoral Trafficking Prevention Act (ITPA) unless there is significant proof that she was a “co-conspirator” in the offense.

In September 2020, the Bombay High Court ordered the immediate release of three female sex workers who were imprisoned in a state detention facility. The court stated that sex work was not a criminal offense under the law and that an adult woman had the freedom to choose her job.

These legal decisions show that there is a growing recognition of the rights of sex workers and the need to protect them from exploitation and abuse. However, the legal status of sex work remains a contentious issue, with various approaches and perspectives on its regulation and criminalization. The unionization of sex workers can be seen as a step towards securing their rights and creating a safer work environment, but it also requires a legal framework that recognizes their profession and provides them with the necessary protections and benefits.

IV. Prostitution As An Industry: Advocating Unionization in the Sex Work Industry

Prostitution is a profession that has been met with moral, legal, and social criticism throughout history. It is an industry that has existed for centuries, and its legality varies from country to country. Despite this, prostitution remains a widespread industry, with millions of people working in it around the world. With such a large number of individuals working in the industry, the question arises as to whether or not prostitution should be recognized as an industry under the law. If it were, sex workers would be able to enjoy the benefits and protection afforded by labour legislation and collective bargaining through unionization.

The Industrial Disputes Act of 1947, which defines an industry as “systematic operations that occur in an organized manner between an employer and labourers,” currently excludes prostitution from being considered an industry. However, sex workers have formed unions in several countries, including Australia and Spain, to promote their interests and protect their rights. In Japan, where prostitution has long been illegal but continues to thrive underground, there is a growing movement to bring the industry into the light through unionization, with the argument that it would better protect the workers from exploitation and abuse.

One common argument against unionization of sex workers is that it would empower pimps and traffickers as much as it would empower the workers themselves. However, it is important to distinguish between victims of sexual exploitation and those who engage in consensual and voluntary sex work. The Supreme Court of India has recognized the need to differentiate between these two groups, and has recommended conducting surveys to determine the number of workers who have been forced into the industry and those who have entered it voluntarily. Both groups require representation, with the former needing the assistance of social professionals and rehabilitation centers and the latter requiring labour union participation.

Unionization of the sex industry has proven beneficial in countries where it has been decriminalized, such as Australia, where sex work is recognized as health-assured and measures have been taken to prevent the spread of venereal diseases and HIV/AIDS. Unionization has also allowed for the protection of workers under the age of 18, who can be extracted and rehabilitated from the industry.

It is crucial to shift the perception of sex workers from being viewed solely as exploited victims to being recognized as engaged in sexual labour. Consensual sex work should be regarded as a form of wage labour, and sex workers should have access to resources, representation, and participation in society. This shift in perception would lead to greater access to resources and the ability to fight against marginalization and discrimination.

Moreover, there is a need for a regulatory structure that recognizes the rights of sex workers and provides them with legal protection. In India, where there are over two million sex workers, prostitution is not punishable under the Immoral Trafficking of Persons Act (ITPA). However, sexual exploitation, commercial sex, maintaining a brothel, and enticing another individual are all criminal offenses. A regulatory framework that recognizes prostitution as a profession and provides legal protection for sex workers would allow for occupational health and safety, and provide legal recourse in cases of injury, abuse, and unjust treatment.

The unionization of sex workers can provide a collective voice for the marginalized community and empower them to advocate for their rights and well-being. It offers an opportunity to address the challenges faced by sex workers, including violence, discrimination, and lack of access to healthcare and social services. Unionization can also facilitate partnerships with organizations and government agencies to ensure that sex workers are included in policy discussions and decisions that affect their lives.

In conclusion, the unionization of sex workers is necessary to provide sex workers with the benefits and protection afforded by labour legislation and collective bargaining. It is important to differentiate between victims of sexual exploitation and those who engage in consensual and voluntary sex work, and provide both groups with appropriate representation. A regulatory framework that recognizes prostitution as a profession and provides legal protection for sex workers is essential for ensuring occupational health and safety, and providing legal recourse in cases of abuse and mistreatment. Society must recognize the rights and needs of sex workers and provide them with the protection and respect they deserve.

Overall, the unionization of sex workers is a multifaceted issue that requires careful consideration of legal, social, and ethical factors. By examining the experiences and outcomes of different countries’ approaches to sex work legislation and incorporating real-life case studies, we can develop a more informed and compassionate understanding of the complexities surrounding sex work. Through a comprehensive and inclusive approach, we can work towards creating a safer and more supportive environment for sex workers in India and beyond.