Regulating Sex Work: Assimilationism, Erotic Exceptionalism and the Challenge of Intimate Labor

Abstract

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This paper, instead, looks at debates within the pro-sex work camp, uncovering some unattended tensions and contradictions. It shows that, within this camp, some stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers, similar to others who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more anti-regulatory stance. They exceptionalize this form of labor, arguing that because it is sexual it should be exempt from state scrutiny and interference, claims which can quickly sound libertarian. In sum, while both camps agree that professional sex work should be decriminalized, when one turns from the criminal to the regulatory perspective, the paper shows how erotic exceptionalists and assimilationists could not be more opposed. The paper contends that neither of these views is satisfactory. Sex work could very well be legalized and regulated — if we have the political and moral will to do so. The paper explores a regulatory structure that might govern sex markets. Doing so requires a break with both assimilationism and erotic exceptionalism.

This paper attempts two interventions into the sex work debate. The first move is a conceptual one, shifting the focus from disputes between abolitionists and sex work advocates to uncovering contradictions and ambivalences within the pro-sex work camp. It gives significant attention to these latent tensions, as I anticipate some readers steeped in feminist theory may dispute this as an issue. The second is a governance move, comparing sex work to other types of work to consider to what extent various risks and injuries of sex work, physical and otherwise, could be ameliorated by legalization — that is by appropriate state regulation. It pairs two regulatory claims. One contends that risk reduction is best served by correlating regulation to institutional form, or what I call sexual geography, which I do not anticipate will be that controversial. Another, which tackles discrimination from the demand side, that is, through the erotic preferences that comprise sex markets, should be provocative to many. In the end, my goal is to launch a conversation about whether the sex workplace really is like the factory floor.

Keywords: feminist theory, prostitution, discrimination law, labor law, critical race theory