Feminists celebrate prostitution ruling as a big step forward

The Ontario Court of Appeal ruled this week that two elements of Canada’s prostitution laws cause harm to women (Gazette, March 27, “Court sweeps aside ban on brothels”).

Specifically, the court said the bawdy-house provisions and the living-off-the-avails provisions of the Criminal Code violate the security of individuals who work in the sex trade and, as such, are unconstitutional.

In simpler terms, the court said prostitution laws put workers in the sex trade (most of whom are female) at risk of violence, and that these laws violate their fundamental Charter rights.

The ruling allows them to hire a driver or a bodyguard, for example, as a way to ensure their safety – practices that were previously criminalized (under the living-off-the-avails provision). It enables women to work together out of the same apartment; this practice had been criminalized under the bawdy-house provisions. The ruling means that women can work more safely and they can work together.

As feminists, we support the ruling, which begins with the explicit and welcome statement that the question at hand is not one of morality, but rather, of constitutionality. We support a legal framework in which complex social issues are disentangled from patriarchal moral norms.

Such norms – for example, the idea that women should not wear pants in church, the implicit condemnation of women who chose to have a child outside of marriage, and the notion that women who dress in a particular way invite sexual assault – have framed how society, at large as well as in the legal arena, has regarded women’s actions, behaviours and dress. Full equality before the law for women is facilitated when “morality” is excluded from legal considerations.

As feminists, we also support this ruling for several other reasons: The Court of Appeal decision protects the Charter rights of individuals marginalized and stigmatized through their work in the sex trade. Legal analysis that examines the situation of vulnerable members of Canadian society is of particular interest to feminists, given feminism’s commitment to social justice and equality for the disenfranchised. This decision is based on a thorough consideration of evidence, including socialscience research as well as the affidavits of women working in the sex trade. As feminist scholars working in academia, we support legal action and legal reform in which the evidence of women’s diverse lives is considered. The decision allows those in the sex trade to protect themselves against workrelated violence, and to work together to increase their safety. As such, this decision encourages women’s collective efforts and solidarity. We celebrate rulings that remove judicial barriers to women’s collective organizing.

In addition, this week’s ruling clearly establishes that the provisions of the Criminal Code related to living off the avails and bawdy houses violate Section 7 of the Charter, the right to security of the person. We agree.

However, the court’s majority opinion does not find that the “communicating” provisions related to prostitution also violate the security of the person, so lets these provisions stand.

This means that communicating in public around the exchange of sex for money remains criminalized. With regard to this aspect of the ruling, we underline that women’s autonomy in relation to work and sexuality is enhanced when women are afforded every opportunity to communicate. Likewise, we see sex workers’ ability to protect themselves from violence facilitated when they can communicate clearly with potential clients about all work-related matters.

Should the ruling go forward to the Supreme Court as expected, we look forward to further reflection about the harm caused by the “communicating” provisions of the Criminal Code.

But legal decisions that exclude “morality,” that uphold Charter rights of individuals stigmatized by their work, that allow women to protect themselves from violence and that encourage solidarity among female workers are decisions to be celebrated by feminists.