Sex workers have been a long standing, and often erased, part of the LGBTQ community. Sex work has offered a life line for those marginalized, an opportunity for many with few, the backbones of nascent organizations and a sub-community for many who have been invisibilized by respectability politics. It is important to look at sex work and its place within the LGBTQ community and in the history of LGBTQ liberation. For an issue which encompasses issues of economic justice, labor, criminalization and policing, sexuality, racial justice, immigration, gender identity and complex other frameworks, sex worker rights can be a lynchpin issue impacting the most marginalized in our communities. Caring about LGBTQ survival means caring about the lives, health and safety of sex workers.
Criminalization and Stigma of Sex Work harms economic survival
With discrimination in jobs, education and services, poverty has long been a queer issue. The trans community are twice as likely to be unemployed compared to cisgender individuals.[i] For homeless and housing unstable youth, the disparities are even more pronounced, with some cities reporting that 40-50% of homeless young people reporting to be LGBTQ-identified.[ii]
Contributing to and exacerbating this economic disparity is the discrimination in traditional employment and social services. Ninety percent of the trans community[iii] report some form of harassment, mistreatment and discrimination in the workplace. One survey found that for homeless shelters, only 30% were open to housing transgender women[iv], while structural barriers such as identification documents with different names and gender markers can make accessing to benefits and services even harder.
As a result, LGBTQ-identified individuals have often relied on sex work as a means of survival. The most recent Transgender Discrimination survey found that 11% of respondents report having done sex work.[v] Broken down by race, the study found that 33% of Latinx respondents and 40% of black respondents reported participation in the sex trade. Homeless LGBTQ-identified youth are seven times more likely than heterosexual-identified peers to trade sex for a place to stay.[vi]
The collateral consequences of a prostitution arrest can also make access to resources and economic stability further challenging. A prostitution conviction can mean disqualification from public housing[vii], deportation or the inability to adjust one’s immigration status, violating a code of conduct to lead to expulsion from higher education, denial of student financial aid[viii], civil consequences such as eviction or removal of children from the home, among many other collateral consequences.
Supporting the health and safety of those who trade sex will necessarily improve the well-being of members of the LGBTQ community, especially those most hard-hit by economic marginalization and injustice.
Criminalizing Sex Work Promotes policing and incarceration of LGBTQ individuals[ix]
In the United States, prostitution, as well as all the mechanisms around that act, is fully criminalized in every state[x]. This is primarily defined as outlawing the exchange of sex for resources, with nuances as to what that encompasses as defined by different jurisdictions and local jurisprudence. As LGBTQ communities experience disproportionately higher levels of policing, prostitution laws are often a significant part of that over policing and incarceration. For youth, LGB young women are twice as likely and LGB young men are ten times as likely to be incarcerated in juvenile detention for prostitution charges, as compared to their peers.[xi]
Particularly harmful are laws against loitering for the purposes of prostitution. Evidence for arrest and conviction can include what a person is wearing, waving at cars, being in an area that law enforcement considers “known” for prostitution, or even having been arrested before – all of which being protected behavior in other contexts. Loitering for the purposes of prostitution has colloquially come to be known as “walking while trans,” because of the frequency with which trans women are subjected to their policing. During his time at the Sylvia Rivera Law Project, Dean Spade reported that 80 percent of the trans women of color he worked with “had experienced police harassment or false arrest based on unfounded suspicion of prostitution.” (Make the Road, 2012, p.13) This practice was further documented by Amnesty International in 2005 and again by Human Rights Watch in 2012.[xii],[xiii]
Proxy Laws destroy peer support, harm reduction and community essential to LGBTQ survival
Criminalization of the sex trade also goes beyond simply the exchange, but through proxy laws such as soliciting, pandering, or promoting criminalize other sex workers, peers, family members and community support. As these laws are often overbroad and require no victimization, acts such as sharing information, driving someone to an appointment, or receiving rent money can lead to charges. Peer support and harm reduction techniques such as giving referrals for potential clients and acting as a bodyguard for one another become a misdemeanor or, in cases of youth, a felony.
Laws such as promoting prostitution can be used against one person who helps another by posting an advertisement, or acting as a booker to interface with clients. Pandering for the purposes of prostitution can, for example, criminalize information sharing about how to find clients between peers in similarly precarious life situations. For a community which has survived by relying on each other when the world has turned its back, these networks are put in jeopardy through third-party laws. Removing these support systems do not disincentivize someone from engaging in sex work, but instead force many to trade sex under worse and more dangerous circumstances.
Decriminalization of sex work is essential to addressing the spread of HIV and promotion of health
The decriminalization of sex work is an essential element to the fight against HIV transmission. In the most extensive study available, decriminalization of the sex trade could reduce HIV transmission 33 – 46% across the globe within the next decade.[xiv] Sexual violence, which is exacerbated by criminalization, poses a significant risk to the health and safety of those trading sex. In addition, when policing practices involve sting operations, negotiation of things like condom use become criminalized activities, and sex workers must either avoid those conversations or try and use vague references to try and avoid arrest.
The use of carrying condoms as evidence of prostitution, a policing practice which has been documented around the world, has led to sex workers in policed areas to not carry condoms, regardless of whether they were going to engage in sex work. In a New York City-based study on the issue, 75% of transgender women said they had not carried condoms for fear of arrest.[xv]
Sex workers are also disproportionately impacted by the implementation of HIV criminaliaztion law through mandatory felony upgrades for those who are arrested for prostitution-related crimes while HIV positive. In California, 95% of those who had been charged with
[i] Grant, Jaime M., Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling. Injustice at Every Turn: A Report of the National Transgender. Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.
[ii] Durso, L.E., & Gates, G.J. (2012). Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual, and Transgender Youth who are Homeless or At Risk of Becoming Homeless. Los Angeles: The Williams Institute with True Colors Fund and The Palette Fund.
[iii] “Injustice at Every Turn.”
[iv] Rooney, Caitlyn, Laura Durso, and Sharita Gruberg. Discrimination Against Transgender Women Seeking Access to Homeless Shelters. Washington: Center for American Progress, 2016.
[v] Fitzgerald, Erin, Sarah Elspeth Patterson, Darby Hickey, Cherno Biko, and Harper Jean Tobin. Meaningful Work: Transgender Experiences in the Sex Trade. Washington: National Center for Transgender Equality, 2015.
[vi] Dank, Meredith, Jennifer Yahner, Kuniko Madden, Isela Banuelos, Lilly Yu, Andra Ritchie, Mitchyll Mora, Brendan Conner. Surviving the Streets of New York: Experiences of LGBTQ Youth, YMSM, YWSW Engaged in Survival Sex. New York: Urban Institute, 2012.
[vii] Curtis, M.A., Sarah Garlington, Lisa Schottenfield. Alcohol, Drug and Criminal History Restrictions to Public Housing. Cityscape: A Journal of Policy Development and Research. Volume 15, Number 3, 2013.
[ix] Prostitution and loitering laws are one part of the larger fight against quality of life policing which targets and profiles people of color and other marginalized communities.
[x] In Nevada, prostitution is legal within a highly-regulated brothel system, which is only allowed to operate in specific locations. Working independently or outside of this system remains criminalized and as of this drafting, Nevada had the highest arrests for prostitution per capita in the country, at a rate of almost 10:1 to the second and third highest states.
[xi] Irvine, Angela. We’ve Had Three of Them: Addressing the Invisibility of Lesbian, Gay, Bisexual, and Gender Nonconforming Youths in the Juvenile Justice System. Columbia Journal of Gender and Law (10)3. (2010)
[xii] Stonewalled: Police Abuse And Misconduct against Lesbian, Gay, Bisexual, and Transgender People in the U.S. United States: Amnesty International, 2005.
[xiii] Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities. New York: Human Rights Watch, 2012.
[xiv] Shannon, Kate et al. Global epidemiology of HIV among female sex workers: influence of structural determinants. The Lancet, Volume 385 , Issue 9962 , 55 – 71, 2014.
[xv] Public Health Crisis: The Impact of Using condoms as Evidence of Prostitution in New York City. New York: PROS Network, 2012.