Sex work is highly stigmatized and criminalized in many countries. For many people, though, it offers a reliable way to earn money and support themselves. This includes people living with HIV, who often face discrimination in employment and housing along with racism, transphobia, homophobia and stigma towards drug use. How does the law affect sex workers in Canada, and what can be done to support them?.
Elene Lam explains
What does the law in Canada say about sex work?
In December 2013, the Supreme Court of Canada ruled in Bedford v. Canada that offences in the Criminal Code targeting sex work were unconstitutional. In this ruling, the Court said that these contributed to violence against sex workers and violated their human rights. However, in 2014 the federal government passed the Protection of Communities and Exploited Persons Act (PCEPA), which reversed this progress.
The Canadian government and anti-sex work groups promote PCEPA as an “end-demand” model. This is sometimes known as the Nordic model because it was first adopted in Sweden, Norway and Iceland. The PCEPA tries to end sex work by making it illegal to buy sex, therefore “ending demand”. However, it creates sex work offences that apply to more than just clients: it actually makes almost all activities related to sex work illegal. It does this by criminalizing the work of sex workers and third parties (which can include managers and drivers, as well as friends and family who provide other kinds of support).
The PCEPA makes advertising, gaining material benefits from sex work, and arranging other people’s sex work (known as “procuring”) illegal. It also criminalizes communicating in public near a school, playground or daycare about buying or selling sexual services. In all cases, sex workers’ labour is seen as part of a criminal activity. Instead of recognizing sex work as a legitimate and valuable job, this law claims that all sex workers are victims and all clients and third parties are criminals.
What effect does criminalization have?
People who advocate against sex work say that “end-demand” laws do not harm sex workers, because they only make buying sex illegal. This is false. There is no way to criminalize one party without affecting the other. When these laws make it illegal to buy sexual services, they create an environment where clients have to become more secretive to try and avoid detection. As a result, clients often rush negotiations and do not provide important screening information. When third parties like managers, security or other sex workers are also criminalized, they may need to work underground to avoid police detection. This prevents them from providing safer working environments for sex workers. Overall, criminalization makes the conditions for sex work unfair and unsafe, and it means that sex workers cannot improve them.
Advocates of “end-demand” laws claim that all sex work is exploitation. This means that sex work is often seen as human trafficking, and it has drawn attention to the sex industry from law enforcement. One effect is that more and more people involved with sex work are being investigated or charged under laws related to sex work. These can include sex workers who provide third-party services and help other sex workers create ads, set prices, travel to and from appointments or book hotels. Migrant and youth sex workers are more likely to rely on each other to navigate their work, which makes them more vulnerable to these charges. Canada’s immigration laws also ban migrants from working in sex-related industries—this means any migrant who does sex work or has a third-party role can be arrested and deported.
When the government criminalizes sex work, it stops sex workers from accessing safer working conditions, housing, healthcare and social and legal services. It also prevents sex workers from asserting their labour rights and improving their working conditions. By framing sex work as something that is harmful to society, criminalization fuels stigma and discrimination against sex workers and their clients. It also fuels the over-policing of sex work and erotic business establishments like body-rub parlours and strip clubs. As a result, some groups that oppose sex work now advocate for shutting down Asian massage parlours.
Criminalization threatens all sex workers in every sector of sex work. It particularly threatens sex workers of colour, Indigenous sex workers, sex workers who use drugs, trans sex workers, low-income and homeless sex workers, and sex workers with precarious immigration status. In Canada, PCEPA is having a disastrous effect on sex workers’ lives and livelihoods. It denies them their fundamental human rights, including the right to have control over their own body and sexual activity. It makes them targets for surveillance and racial profiling. They face the unwanted and unsolicited presence of police in their lives, which brings a constant threat of being arrested, charged, detained, deported, imprisoned and having a criminal record. Even if sex workers are not actually charged, arrested or deported, attention from police can have other effects: it can mean being evicted from working and living spaces, targeted for violence by neighbours or partners, and devalued as a community member and skilled worker. Ultimately PCEPA is an assault on sex workers’ legal, financial and bodily autonomy.
What can Canada do to support sex worker rights?
For many years, sex worker advocacy groups have been campaigning to have sex work fully decriminalized. UNAIDS, Amnesty International and the World Health Organization support the decriminalization of sex work. They have recognized that decriminalization creates safer working environments, helps protect workers’ rights, improves their access to health services and reduces their vulnerability to HIV, violence, exploitation, stigma and discrimination.
Canada can respect the rights and dignity of sex workers by fully decriminalizing sex work. This would mean repealing all the sex work offences in the Criminal Code, including the activities of sex workers, clients and third parties. Immigration laws that hinder sex work and all other forms of legal oppression must also be repealed. In 2021, the Canadian Alliance for Sex Work Law Reform (an alliance of sex-worker rights groups across the country) launched a constitutional challenge seeking to strike down criminal offences related to sex work.
Sex work is work. It is not human trafficking, an immoral act or an act of violence. Sex work is meaningful and valuable work that provides economic opportunity. Canadian society should work to eliminate discrimination against sex workers as well as fight against all forms of systemic oppression, including whorephobia, transphobia, xenophobia, racism, sexism and classism.
Elene Lam is director of Butterfly (Asian and Migrant Sex Workers Support Network).
For more information on sex work and the law in Canada, visit www.butterflysw.org/legal-information-for-services-prov