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Unjust and Counter-Productive- The Failure of Governments to Protect Sex Workers from Discrimination

A joint project of the Scarlet Alliance and the Australian Federation of AIDS Organisations in September 1999. This report was produced by Scarlet Alliance and the Australian Federation of AIDS Organisations. Written by Linda Banach (AFAO)and Edited by Sue Metzenrath (Scarlet Alliance). Produced with the assistance of all the sex workers who participated in the survey upon which the report was based. Thanks to the following people for their contributions: Darryl O’Donnell, Tim Leach, Chris Ward, Julia Cabassi and the various staff employed at sex worker community organisations who distributed the survey.

Contents

Section One Anti-Discrimination Protections for Sex Workers Five Arguments

  • [1] Discrimination Harms Sex Workers
  • [2] Discrimination Impedes Health Promotion
  • [1.3] Discrimination Undermines Regulatory Objectives
  • [1.4] Anti-Discrimination Protections are a Human Right
  • [1.5] Anti-Discrimination Protections can be Easily Implimented

Section Two Discrimination Against Sex Workers Research Findings

  • [2.1] Restrictions on Working as a Sex Worker
  • [2.2] Health Restrictions
  • [2.3] Condoms as Evidence in Prosecution
  • [2.4] Relations with Police
  • [2.5] Use of Industrial Protections

Discrimination and harassment are a fact of life for the majority of sex workers. The Australian Capital Territory is the only Australian jurisdiction which protects sex workers from discrimination on the grounds of their occupation.

This document is a lobbying tool based on national research conducted with sex workers regarding their experiences of discrimination. It provides arguments for broadening State and Territory anti-discrimination provisions to cover occupational discrimination, overviews the current legal situation across Australia, and identifies strategies for advocacy and activism.

Even thought I’m proud of being a sex worker I feel I need to be careful whom I tell for personal as well as business or day-to-day living reasons. I feel kind of that sex workers are at that point of frustration that gays and lesbians must have felt in the past when wanting EQUALITY and to be able to be OUT and PROUD. Knowing how I can be discriminated against is the reason that I have to lie about my occupation (generally I am a very honest person). Having to lie like this probably perpetuates some of the myths surrounding workers. Private worker in South Australia

An application for a credit card interest free period didn’t ask my income – just occupation. I lied and said I was a receptionist . My application was refused as a receptionist income couldn’t make the necessary repayments. When I told the bank my actual occupation I was told I could be done for fraud and my application was still refused. Private worker in South Australia

Three escort workers leave a top motel in the City. The two blond escorts walk straight to the driver’s car and get in. The third escort, having dark skin, was harassed by a police officer. The driver approached the police and asked what the problem was . He was told to return to his car. After 40 minutes I decided to drive downtown and find out what is happening. The escort by this stage is on the ground crying her eyes out, in fear, her personal belongings scattered over the footpath. I ask police why he is harassing her. No reason is given. He told me to get back in my car. The Escort is crying out for me to help her. She was charged with having two small hotel bottles of alcohol, which she could not prove she had bought. Escort worker in South Australia

I would never disclose to a prospective employer of a ‘straight’ job that I was/am a sex worker because of fear of discrimination Private worker in Queensland Sex workers should receive the same treatment as any other tax-paying, law-abiding citizen and/or provider of service. Private/massage worker Western Australia.

Anti-Discrimination Protections for Sex Workers: Five Arguments

[1] Discrimination Harms Sex Workers

An argument advanced for the failure to adequately reform sex industry regulations to ensure that sex workers have occupational conditions enjoyed by other service industries is that sex work is inherently exploitative and harmful to those who work in the sex industry. However, little consideration is given to how laws regulating the sex industry create the conditions for the exploitation of sex workers and contribute to the social and psychological harm of sex workers.

Laws in the majority of Australian jurisdictions are concerned with controlling the sex industry whilst not ‘legitimising’ or ‘promoting’ sex work as a viable work option. This is achieved by prohibiting work in certain sectors of the sex industry. Further, sex industry laws often actively discriminate against the development of, and sex workers access to, mechanisms and legal remedies to address discrimination experienced in the workplace or in conducting sex industry businesses. This is particularly applied to sex workers who work in prohibited sectors of the sex industry.

Discrimination affects sex workers in both their professional and personal lives. Professionally this discrimination is apparent in the restrictions on how sex workers may operate. These restrictions may include:

  1. Designated sectors of the sex industry in which sex workers can legally obtain employment;
  2. limited occupational health and safety standards;
  3. preventing sex workers access to health services;
  4. an absence of workplace benefits and conditions (e.g. Work Cover, leave entitlements, superannuation, workplace fines for breaching rules);
  5. employment on a contract rather than full-time basis;
  6. special local council provisions to approve location of sex industry businesses, including private or solo workers;
  7. preventing sex workers access to small business opportunities required to establish successful businesses;
  8. mandatory health checks for sexually transmitted infections (STI) as a requirement of employment;
  9. discrimination on the basis of health status;
  10. fear of public identification or retribution limiting sex workers access to legal remedies to address unfair work practices;
  11. preventing access to justice and legal remedies to address crimes of violence in a work setting;
  12. police harassment and corruption;
  13. restrictive advertising practices (e.g. pre-payment of advertising, designated area of paper in which to advertise, design, size and working determin ed by publisher, higher cost of advertising);
  14. difficulties in obtaining goods and services to operate a sex industry business (e.g. higher rent/lease agreements, income protection and business insurance coverage, credit card facilities, banking facilities such as loans and other credit arrangements); and
  15. stigmatisation of the profession.

Personal discrimination may affect sex workers by:

  1. Limiting sex workers access to legal remedies to address crimes of violence due to a perception that crimes against sex workers are not taken seriously by police;
  2. affecting personal relationships because friends/families/partners may fear criminal prosecution or police attention for associating with sex workers;
  3. exposing friends/family/partners to the risk of prosecution for sex industry offences such as - ‘living off the earnings of prostitution’;
  4. silencing sex workers from disclosing previous or current employment in the sex industry for fear of discrimination when seeking alternative employment, membership of organisations, undertaking study or travel;
  5. restricting the purchase of goods or services for personal use (e.g. home and contents insurance, private health care insurance, personal loans and other consumer items); and
  6. limiting sex workers participation in community activities.

[2] Discrimination Impedes Health Promotion Activities

Research demonstrates that the implementation of STI education and prevention strategies and occupational health and safety standards in the sex industry is hindered by sex industry laws which criminalise sectors of the sex industry (Alexander, 1998; Banach 1999).

The first National HIV/AIDS Strategy recognised the potential for discriminatory laws and practices to damage public health interventions. It stated that:

*State government’s should review legislation, regulations and practices which may impede HIV education and prevention (1989: para.4.2.22)*

Current medical research indicates that the risk of contracting an STI in Australia from a sex worker is negligible (National Centre in HIV Epidemiology and Clinical Research, 1998: 18). However, sex workers and clients must be able to adequately access health care information and services to encourage the development and maintenance of healthy work environments. Criminalised frameworks do not support the development of mechanisms and standards to enhance the occupational health of sex workers. Sex workers who are the most marginalised by their work environment, as determined and influenced by legal constraints, are at greatest exposure to health risk (Alexander, 1998).

The Legal Working Party of the Intergovernmental Committee on AIDS (IGCA) examined the public health implications of sex industry laws and concluded that laws which criminalised the sex industry significantly hindered public health initiatives. They stated:

*…laws which punish those working in the sex industry reduce the effectiveness of measures designed to prevent the spread of STDs (IGCA, 1991: 20)*

Specifically, the IGCA recommended that discriminatory practices such as mandatory sexual health testing and identification of sex workers should be prohibited in the sex industry. Further, the display of health certificates to clients was inappropriate as they may undermine best risk management practice with respect to condom use. They recommended that sex industry businesses should supply free co ndoms and sexual health educational material to sex workers and make it an offence for sex industry employers to compel a sex worker to provide sexual services without a condom. The IGCA recommendations are annexed at B.