A collective of local sex workers has sued District Attorneys in San Francisco, Alameda, Marin, and Sonoma counties, along with the California Attorney General, in 2015, arguing that California anti-prostitution laws violate the U.S. Constitution. After a federal judge dismissed the suit in 2016, the group appealed to the Ninth Circuit Court of Appeals and, in January, a three-judge panel struck them down.
The collective is now asking the Ninth Circuit for a re-hearing before 11 judges, says Maxine Doogan, president of the collective, called the Sex Workers and Erotic Service Provider Legal, Educational and Research Project (ESPLERP).
“The law we’re challenging … criminalizes people from being able to agree to sexual contact for compensation,” Doogan says. “It makes it so that people in the industry don’t have equal protection under the law. … We don’t have any privacy rights that all private citizens have.”
The California Penal Code prohibits a broad umbrella of human behavior considered “lewd conduct,” including prostitution. ESPLERP argues that the law violates Constitutional protections on free speech and due process, as well as the U.S. Supreme Court’s landmark 2003 decision in Lawrence v. Texas, which legalized same-sex intercourse nationwide — and also expanded the right to sexual liberty.
“[The Supreme Court] said you can’t regulate private sexual behavior,” says D. Gill Sperlein, ESPLERP’s lawyer. “The fact alone that it’s an economic arrangement should not necessarily mean you should be denied the fundamental right of who to have sex with.”
But their lawsuit has faced an uphill battle. In federal court, the case was assigned to Judge Jeffrey White, appointed by George W. Bush and known for his hardline conservative stance. He ruled that the sex workers’ view of a fundamental right to have sex was “too broad,” and that the courts have not, so far, included sex work in the Constitutional right to liberty.
When ESPLERP appealed to the Ninth Circuit, they landed with three more right-leaning judges appointed by Bush and Ronald Reagan. The court agreed with White, and found that the sexual freedoms expanded by Lawrence v. Texas apply only in “a personal bond that is more enduring.”
The defendants have argued that there are proven links between prostitution and sex trafficking — including of children — and between prostitution and abuse of women, drug use, and the spread of sexually transmitted diseases.
“Criminalization of prostitution reduces the demand for prostitution,” the defendants argued in their appellate brief. “Persons who, like the individual plaintiffs in this case, are deterred from becoming prostitutes, can avoid the associated evils of increased exposure to violence, illegal drugs and disease.”
But legalization proponents argue that sex workers and their clients are the ones most likely to witness trafficking and abuse — and they’re less likely to report it if they fear they’ll be arrested for engaging in prostitution.
San Francisco District Attorney George Gascon in January issued a memo saying his office would not prosecute sex workers who come forward to report other crimes witnessed during the course of their work. Supervisor Hillary Ronen launched a new program in December to provide medical and social services to sex workers in the Mission. But neither one changes the law, and both are extremely localized.
Doogan says the lawsuit feels like sex workers’ last chance to decriminalize their trade in California. In 2008, San Francisco voters rejected a ballot measure that would have legalized prostitution. Fundraising for the campaign was difficult, Doogan says, because few people want to disclose that they’ve contributed money to such an effort. After the measure failed, local sex workers created ESPLERP as a nonprofit, allowing supporters to donate anonymously.
However, even with that barrier removed, another ballot measure would be prohibitively expensive, and any positive outcome would only apply in San Francisco, Doogan says.
Whether the Ninth Circuit agrees to rehear the case, she says the collective plans to appeal all the way to the U.S. Supreme Court. And if that happens, any change in the law would apply nationwide — not just in California.
“Our case is about all people, regardless of your relationship status — that you have access to sexual privacy rights. We’re looking for that basic acknowledgment,” Doogan says.