Canada’s Supreme Court Makes Landmark Ruling In Favor Of Sex Workers’ Rights

On Dec. 20, the Supreme Court of Canada struck down the nation’s anti-prostitution laws. The court found that laws prohibiting brothels, street soliciting and living off the avails of prostitution were “disproportionate” and created a dangerous environment for those working in the industry.

Women’s memorial photo in Vancouver’s Downtown Eastside, 2005,
Photo Copyright Renegade98

“It is really really great news for sex workers, for the movement, for women, men and human rights,” said Jennifer Drummond, coordinator of the Sexual Assault Resource Centre at Concordia University. “It’s amazing.”

The court stressed that the ruling was not about the question of whether prostitution should be legal, but rather whether parliament infringes upon the constitutional rights of prostitutes with these bans. In her written decision, Chief Justice Beverley McLachlin wrote:

“The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

The decision was unanimous with all nine justices voting in favour of striking down the laws. “In a very basic sense it means that sex workers are considered human beings, and people that have rights,” said Drummond, “the right to safety, security and a work life and a personal life free from violence.” Drummond is also President of the board of directors at Stella, l’amie de Maimie, a Montreal-based support and advocacy organization for sex workers.

Women’s memorial photo in Vancouver’s Downtown Eastside, 2005,
Photo Copyright Renegade98

Terri-Jean Bedford, Amy Lebovitch and Valerie Scott brought forward the constitutional challenge that resulted in the case reaching the Supreme Court. The three women all have experience in sex work. Bedford was appealing a decision from March of this year by the Ontario Court of Appeal which upheld the ban on street soliciting, while the Ontario and federal governments were appealing that same decision’s revoking of the ban on brothels and limiting the law against living off the avails of prostitution.

“Whether or not one agrees with sex work, it is indisputable that the current laws have served to discriminate against and further marginalize an already at-risk population,” said Megan Evans Maxwell, the executive director of the Centre for Equality Rights in Accommodation. “If sex work itself is legal, it follows that the government cannot constitutionally enact laws that discriminate against sex workers practicing a legal act. The challenged laws create genuine barriers to sex workers’ full and safe participation in society.” According to Evans Maxwell, neither criminalization nor the condonation of prostitution were the issues before the Supreme Court in this case. Instead, the ruling should be understood as a decision about women’s equality rights.

Safety and security are serious concerns for those working in the sex trade. Nicole (a pseudonym) worked in massage parlors in New York City over a period of three years. Though the prostitution laws within Canada and the US differ, her experience of the fear and stress of navigating her occupation transcends borders. She considers where she worked to be the safest possible environment, in that their clients were carefully screened, but still there was no recourse if a client was aggressive. This powerlessness was also coupled with the fear of being arrested by an undercover cop. Nicole was sexually assaulted several times at work. “It’s not even about the fact that we couldn’t report it to the police but that we couldn’t even blacklist clients for fear of what kind of revenge they could enact on us, like reporting us to the police, or getting even more aggressive if we fought back too hard,” she said. “That lawlessness is really scary.” She believes this problem is drastically magnified for women working on the street.

Electra (a pseudonym) feels similarly. She worked briefly at an escort agency in Toronto and believes the violence within the field is not inherent to the trade, but is rather a direct byproduct of the inequality encountered by prostitutes. For her, it is the entire social framework encompassing prostitution that must change. “It is only in such a puritanical world where exchanging some product of yourself is deemed as morally wrong, compared to other trades,” she said.

Within the industry, sex workers who solicit on the street face the greatest threat of violence. Prostitutes work alone and they cannot properly screen their clients. The current laws make it illegal for these workers to take crucial safety measures. “Legislation that both legalizes the profession, but then criminalizes any attempts to increase safety, has the effect of discriminating against sex workers,” said Evans Maxwell. “It isolates them and fails to take into account their already disadvantaged position in society. Even more troubling, the legislation actually places women in further harm.”

The legacy of Robert Pickton was a specter over much of the Bedford case. Pickton was able to abduct and murder women from Vancouver’s Downtown Eastside neighborhood while the police turned their attention elsewhere. In 2002, Pickton was charged with the murder of 26 women, the majority of whom were sex workers. He was convicted on six counts of second-degree murder.

Drummond believes the ruling could change a lot for sex workers. It gives them more control over their work, both in terms of their safety and heath. Prostitutes can now work together and indoors. They can hire security and drivers. And while these things may be beyond the reach of many individuals that are street soliciting, it is still an important milestone.

Terri-Jean Bedford (far right) at a National Day of Action in Ottawa, 2013
Photo Copyright Ryan

“I feel silly talking about security because my workplace was so safe compared to what most sex workers deal with,” said Nicole, “but honestly the exertion of running any operation where your number one priority is avoiding law enforcement and your number two priority is doing your job always sucks.” Nicole found that the secretive nature of her job was emotionally taxing. “I would hope that legality would make it easier for sex workers to be honest with their friends and family about their job,” she said. “The toll of keeping that secret can drive you insane.”

These new provisions allowing for more transparent sex work will, however, not take effect immediately. The court’s ruling will be suspended for one year in order to allow parliament time to respond. The Canadian government must now decide whether to adopt new prohibitions, but any such measures would have to be in accordance with the court’s decision. In recognizing the intertwined nature of the bans on soliciting, brothels and living off the profits of prostitution, the court did allow the possibility that aspects of the current laws could be maintained if certain provisions were altered. “There are definitely going to be challenges ahead,” said Drummond. “We’ve won the legal battle but there is going to be a political battle to come. But I’m hopeful; we are going to have a big year ahead of us.”

Mourning Madiba: South African Queers Grapple With An Uncertain Future

When Funeka Soldaat got the phone call, she thought it might be a joke. It was only after checking Facebook and seeing it reported in the media that the reality sunk in; Nelson Mandela had died. She, along with her country, was devastated. As a black South African born under apartheid, 52 year-old Soldaat had many reasons to revere Mandela. But as a lesbian she felt an added sense of indebtedness and grief.

Mandela, Nkoli, Mtetwa, McKellan
Via GALA

“Mandela played a critical role in changing attitudes towards rights of LGBTI people in South Africa,” wrote Anthony Manion in an email. Manion is the director of South African queer archival organization GALA , or Gay and Lesbian Memory in Action. After a week in which world leaders descended on the country as South Africans marked the life of, and then buried, their former president, it is perhaps only now in the quiet aftermath that the significance of his death is being absorbed. The rainbow nation is a country of contradictions and complexities when it comes to its queer citizens, and as LGBT South Africans mourn Mandela they also worry about the future.

“He is the only normal president that we have had after we got liberated,” said 39 year-old Ndumie Funda. “We should celebrate his past, but we should think of the future. What is the future holding for us in South Africa?” Funda is the founder and director of Luleki Sizwe, an advocacy organization based in the Gugulethu township outside of Cape Town that provides support and resources for black LBT women. When she muses about the current hardships of today’s South Africa, it is not only poverty and unemployment statistics that worry her; the escalating number of hate crimes is a very personal and pressing concern. Though it can be difficult to get an accurate understanding of the situation as statistics can be unreliable due to underreporting, a minimum of 31 lesbians have been killed since 1998 through violence motivated by their sexual orientation. And black lesbians and transgender men are particularly at risk. South Africa has the highest rates of reported rape in the world. And the practice of “corrective rape” (rape of a queer woman in an attempt to change her sexual orientation) is widespread, especially within some of the more impoverished townships and rural areas. These crimes are rarely prosecuted and, when they are, few end in conviction.

Ndumie Funda

In 1996, South Africa became the first country in the world to have a constitution enshrining the rights of gays and lesbians. Protection for transgender individuals was later read into the constitution. Ten years later in 2006, South Africa became the fifth country globally to legalize same sex-marriage.

Mandela was a catalyst for ensuring that the African National Congress (ANC) included LGBT rights within its mandate of equality. After he had been elected president, he made specific mention of the rights to equality for LGBT people in his inaugural address in 1994. He also personally met with LGBT rights activists Phumi Mtetwa and Simon Nkoli, as they lobbied for the inclusion of the sexual orientation clause within the final draft of the constitution. Manion speculates that, without Mandela’s support, it’s possible that clause may have been excluded. “Mandela’s belief that ‘freedom is indivisible’ and that ‘the denial of the rights of the one diminish the freedom of others’ continues to inspire,” wrote Manion. “And is a reminder to LGBTI people that we must fight not only to combat homophobia and transphobia, but all forms of social and economic oppression.”

Soldaat too feels that, though Mandela was not always vocal in the media about accepting homosexuality, he consistently influenced his colleagues within the ANC to fight discrimination against LGBT South Africans. “We were so comfortable cause he never tried to undermine or to judge anyone. He never made any homophobic statements,” said Soldaat, who is a coordinator and founder of Free Gender, a black lesbian advocacy organization based in the Khayelitsha township of Cape Town. She, like Funda and many others within the country, is dissatisfied with their current head of state. President Jacob Zuma has been embroiled in sexual and financial scandals since before he took office, the latest pertaining to millions of rand of government money that was spent on updates to his residence. He has also made public homophobic remarks prior to his presidency.

Via Funeka Soldaat

Currently, the legal protections and support for the equality of LGBT citizens, quietly facilitated by Mandela, often do not translate into the realities of everyday life for queer South Africans. “He died in a really critical time in our lives, with the increase of the killing of lesbians,” said Soldaat. Funda has personally felt the effects of this targeted violence; her primary motivation for starting Luleki Sizwe was her former partner. Her fiancé was gang raped at gunpoint and contracted HIV as a result of these attacks. She later died of AIDS. A 2009 ActionAid report cited an interview with LGBT rights organization Triangle Project’s then director Vanessa Ludwig, who says the group deals with as many as 10 new cases of corrective rape each week, with the numbers continuing to increase.

In 2011, both Funda and Soldaat became members of a newly created interim task force established in partnership with the Department of Justice to examine hate crimes targeting the LGBT community. Funda hopes that corrective rape will soon be classified as a hate crime, but the national election set for April 2014 could interfere with this legislation. As painful as Mandela’s death is, she feels he should be allowed to rest. But as LGBT activists here, Funda and Soldaat cannot afford to stop working. “It is a very frustrating time,” said Soldaat. “It is a scary time.”