The Erotic Service Provider Legal, Educational, and Research Project filed a federal lawsuit back in 2015, challenging a 145-year-old California law that makes sex work illegal. On Thursday, attorney Louis Serkin, representing the group, spoke before a panel of three judges at the United States Ninth Circuit Court of Appeals, as CBS 5 reports, asking them to strike it down after a federal judge in Oakland dismissed the suit last year.
Laying out the plaintiffs' argument, Serkin said, "I believe people in this country have the right to act this way and to make a living this way." According to The Independent, they say that the law "unfairly deprives consenting adults of the right to private activity, criminalises the discussion of such activity, and unconstitutionally places prohibitions on individuals’ right to freely associate." Essentially, they're saying that by criminalizing how sex workers make money, the state is denying them their constitutional rights, and that it should be up to a person to decide how they want to work.
Judge Carlos Bea, one of the sitting judges on the panel, wondered, "Why should it be illegal to sell something that it’s legal to give away?"
Sharon O'Grady, Deputy California Attorney General, is tasked with defending the law, and presented the argument that it exists as a measure of safety, as she said that it "[deters] violence against women, sex trafficking, drug use and transmission of sexual diseases," writes NBC Bay Area. She also addressed their concerns about how the law may infringe on their liberty, saying that, "The state is not telling anyone who they can sleep with," but in the interest of reducing the aforementioned dangers, banning sex work is "an easy place to draw the line."
But some experts disagree. LAMBDA Legal's HIV Project Director, Scott Schoettes, said, "Criminalizing sex work does not reduce the transmission of HIV or other sexually transmitted infections: in fact, just the opposite is true." He explains further in a post on the LAMBDA Legal blog:
The evidence is clear that laws making it illegal for consenting adults to engage in private sexual activity in exchange for money hurt public health because they lead to fear of law enforcement and criminal prosecution, deter use of condoms—they are often used as evidence of intent to commit this crime—and create hurdles to health care for sex workers and their clients. The lower court ruling was ill-informed and misguided, and the Ninth Circuit should direct the lower court to reinstate the case and to consider the effects of these laws on public health.
The discourse around sex work has obviously changed since the law was created, and despite being amended multiple times since then, people still feel that it's out of date. Regarding O'Grady's point, it's worth noting that because sex work is criminalized, "transgender people, people of color, LGBTQ young people, gay men, and women who sell sex (as opposed to the men who buy it from them)" are often disproportionately targeted by law enforcement officials, according to an ACLU of Southern California report on sex work. Punishing sex workers instead of those who perpetuate and feed the dangerous system (be it through purchasing, i.e., johns or managing, i.e., "pimps") feels backwards.
The judges' decision should be forthcoming, but perhaps not until the new year.