Canadian sex workers are fighting back against the criminalization of their clients. A coalition of sex workers went before the Ontario Superior Court last week to argue against Canada’s prohibition on paying for sex. The groups are also challenging a suite of anti-prostitution laws, passed in 2014, known as the Protection of Communities and Exploited Persons Act (PCEPA).
The PCEPA was passed after the Canadian Supreme Court in 2013 struck down several laws related to prostitution—something that was legal in Canada but seriously restricted due to laws against activities related to it, like brothel keeping. Judges in the 2013 case—Canada v. Bedford—said these ancillary restrictions violated sex workers’ constitutional rights to liberty and security.
Sex workers in the current case—brought by the Canadian Alliance for Sex Work Law Reform (CASWLR), a coalition of 25 sex worker rights organizations, and several individuals—say the PCEPA is also unconstitutional.
These laws cause “serious and repeated breaches of sex workers’ Charter rights to life, liberty, and security of person, equality, freedom of expression, and freedom of association … without protecting communities or exploited persons,” they argue.
The government’s choice to criminalize sex work and shroud the #PCEPA in the language of exploitation does not substantially alter the constitutional analysis, nor does it justify the serious harms that the PCEPA imposes on sex workers. #decrimNOW
— Sex Work Law Reform (@CDNSWAlliance) October 7, 2022
Under the PCEPA, it’s illegal to advertise sexual services, communicate in a public place for the purpose of offering sexual services, or receive a “material benefit” from the purchase of sexual services. It’s also illegal to procure or purchase sexual services generally.
With the PCEPA, Canada adopted what’s known as the “Nordic model” of regulating prostitution, patterned on policies popularized in Sweden, Norway, and Iceland. The Nordic model (which some U.S. campaigners have tried to rebrand as the “end demand” or “equality model”) technically makes it legal to provide paid sex but a crime to pay for sex. Proponents of the Nordic model like to argue that it’s a scheme that’s friendlier to sex workers. But with their customers criminalized, it’s still difficult for sex workers to screen clients, market through traditional means, or otherwise operate in an open way. Essentially, the Nordic model re-creates all the problems of full criminalization but gives anti-prostitution campaigners a progressive veneer.
“Taken individually and together, the PCEPA provisions reproduce harms of the criminal laws struck down in Canada v. Bedford and causes new harms to all sex workers,” said Jenn Clamen, national coordinator of the CASWLR, at a September 29 media briefing. “The harms of these provisions are extensively documented in our evidentiary record, which includes academic and community research on the experiences of Indigenous, Black, racialized, trans, and migrant sex workers across the country, many of whom work in some of the most difficult conditions.”
Under the PCEPA, “clients fear detection by police, which impacts my ability to communicate with them, and make my work riskier,” said Monica Forrester, a sex worker and one of the plaintiffs in the case. “I cannot negotiate prices and services with clients, especially in public spaces, because the police might show up. The fear of police makes me rush and I’m not able to do the screening I need to.”
The #PCEPA impairs full and explicit conversations,
notably at the earliest stage of the transaction, and forces rushed communications. All of this prevents sex workers from safely screening a client, a vital safety tool. #decrimNOW— Sex Work Law Reform (@CDNSWAlliance) October 7, 2022
CASWLR’s case “is the first constitutional challenge to PCEPA provisions initiated by sex workers, and the first to challenge all the provisions individually and together arguing they violate sex workers’ human rights to dignity, health, equality, security, autonomy and safety of people who work in the sex industry, which includes their right to safe working conditions,” the group said in a press release.
Organizations supporting the CASWLR case include Amnesty International Canada, the British Columbia Civil Liberties Association, the Black Legal Action Centre, the Canadian Association of Refugee Lawyers, the Canadian Civil Liberties Association, and The Women’s Legal Education and Action Fund.
Jelena Vermilion, executive director of Sex Workers’ Action Program of Hamilton, told the CBC that her organization had hoped Canadian lawmakers would pass a decriminalization bill but “nobody has had the courage to do so, so sex workers are taking the government to court to fight for their rights.”
Tracy Gregory, founder and executive director of the Sex Workers Advisory Network of Sudbury said that no matter what happens in the Ontario Superior Court, she suspects the case will end up before Canada’s Supreme Court.
Free Minds
Why China didn’t liberalize. “With populist authoritarianism on the rise around the globe, it’s hard to remember that only a quarter century ago the dominant assumption in American foreign policy circles was that liberal democracy would naturally spread to the rest of the world,” writes Noah Millman at Persuasion. And this assumption applied to China, too.
Starting in 1979, China had already begun to embrace markets and property rights as its route to prosperity. A decade later, the Tiananmen Square protests raised hopes that democracy and political rights might not be far behind. Even after the government brutally crushed those protests, the dominant view amongst American foreign policy experts was that economic development and engagement with the United States would push China in the direction of liberal democracy. And as it became more liberal, the theory went, China would grow into a responsible partner in an American-led global security order.
Those hopes have long since been comprehensively dashed. Under its current leader, Xi Jinping, China has taken a decisive turn away from free markets, and become more repressive and totalitarian in its regulation of private life than it has been in decades. At the same time, China has been vocally opposed to the American-led security order, and is increasingly prepared to challenge it militarily. China now poses the greatest emerging non-domestic threat to both American liberal values and American geopolitical dominance. Such a momentous policy failure demands an accounting. Why did China not evolve as American policymakers had hoped and expected? And what are the implications for the democracy agenda in foreign policy?
More here.
Free Markets
Rescheduling marijuana could take years. Last week, President Joe Biden said he was directing the relevant folks in his administration to look into rescheduling marijuana, which is currently a Schedule I drug—the most prohibited kind, declared to have no accepted medical use. Building a case for reclassification is hindered, however, by the fact that being a Schedule I drug means people can hardly even study the effects of marijuana. In other words, efforts to revoke its Schedule I status are being hindered by its Schedule I status.
The Washington Post reported on this Catch 22 yesterday, noting that “a final determination over how to classify marijuana could take years. The prospect is sure to ignite a flurry of lobbying and a renewed push in Congress to decriminalize the drug at the federal level.”
Reason‘s Joe Lancaster has more on the situation here. “Even just changing the classification of weed to Schedule II, the same as fentanyl, would at least open it up to medical research, a change advocated by such groups as the American Academy of Pediatrics and the American College of Physicians. Further, under Schedule II, it could even be prescribed by doctors similar to the way painkillers are now,” he points out.
Quick Hits
• President Joe Biden “spins yarns that often unravel,” notes The New York Times, citing a recent story Biden told about losing much of his house after lightning struck. “In fact, news reports at the time called it little more than ‘a small fire that was contained to the kitchen’ and quoted the local Delaware fire chief as saying ‘the fire was under control in 20 minutes.'”
• Reason‘s Robby Soave looks at Paypal’s efforts to police misinformation.
• J.D. Tuccille writes on surviving a nuclear exchange.
• Erik Cantu, the Texas teenager shot by police during a misguided stop in a McDonald’s parking lot, is still on life support.
• “A Black teenager in Mississippi was taken off life support days after Gulfport police shot him in the head outside a discount store, and his relatives are questioning officers’ actions,” reports the Guardian.
• “Politicians exercising control over the political speech of others is a very dangerous recipe,” Christopher Cox, a Republican former and former U.S. representative who co-wrote Section 230, tells The Washington Post in an article about partisan divides in content moderation.
• Walmart is challenging a class action lawsuit against the company drug testing job applicants by arguing that it can only be enforced by the state—New Jersey—that has barred such a practice, not by a private lawsuit.
• “A federal judge held the Bureau of Prisons (BOP) in civil contempt and levied sanctions against the agency last week for allowing an incarcerated man to waste away from untreated cancer, as well as for willfully ignoring and misleading the court,” reports Reason‘s C.J. Ciaramella.
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