Mexico City has always had a tolerant, or perhaps, negligent, attitude towards sex workers.
With the exception of a short period just following the Revolution, when the sex workers could (and did) successfully argue that as workers they were entitled to the same rights as any other worker (prostitutes in brothels were successful in arguing that they were entitled to paid days off, and overtime), when decisions have been made to regulate the trade, the most affected — the sex workers themselves — are almost never heard from. And even with the rulings from the Labor Board back in the 1920s, the rules were always made by the city fathers.
Note I said “fathers.” While it is true that not all prostitutes are women, the regulations over the last few centuries have always been argued on the assumption that they are to protect women … if not from themselves and their depraved nature (as Archbishop Aguilar y Seixas argued in the 1690s, much to the amusement of those “depraved” workers), then from diseases (the justification for the “yellow card” of the 1890s and later) or in our day from lingering gender inequality. How this actually affects the mostly women sex workers has been, at most, an afterthought.
A strategic mistake, and one that often leads not to more equality, but less, which we may be able to avoid, according to attorney Claudia Torres, writing in Animal Politico.
On October 12, Mexico City Legislative Deputy Victor Hugo Romo announced he would hold public hearings to discuss sex-worker regulations1 . In light of the hearings, I am taking the opportunity to discuss the politics and law regarding prostitution.
First the politics. Generally, at the global level, when it comes to prostitution, there are two feminist groups seeking to advance regulatory schemes2. On the one hand, there are the neo-reglulators, feminists and organized groups of sex workers, who believe that voluntary prostitution should be regulated as work. Within this group, there are different views on what controls the state can impose on the exercise of prostitution. And these controls can range from registration of sex workers or certification authorities, to compulsory medical supervision. Overall, the underlying ideology in this position is liberal: it seeks to balance the rights of workers and society.
On the other hand, there are the abolitionist feminists, joined with more or less legitimacy by conservative Christian groups. For this group, prostitution necessarily involves exploitation and violates human rights. Therefore, this group argues that the state should abolish the practice3. Towards that end, the abolitionists support a range of measures whose ultimate goal is to eradicate prostitution: criminalize the client and third parties that obtain economic benefit from prostitution; increase criminal penalties for sexual exploitation and trafficking; or even take a more statist action: criminalizing the prostitutes. Overall, the ideology is materialistic. It assumes gender inequality is foundational and, in that sense, inescapable.
Typically, those involved in debates over prostitution are not explicit in their political and ideological biases. Rather than make arguments based on facts, they posture. In my opinion, creating rational and progressive standards in a the context of a democratic political system requires that one (1) articulate the goals and (2) explain the reasons for seeking those goals. To simply rely on tradition, human rights in the abstract, or trends in other countries in creating rules and policies leaves the foundation of our moral judgments in the realm of the unconscious. One must be skeptical about the assumptions underlying different regulatory schemes that deliberately call for a possible reconsideration of the utilitarian value of the proposal. Moral skepticism is the first step towards betterer design standards and public policies on prostitution. In light of new voices and needs, we should open the door to a complete review.
What about perpetuating the status quo? Some feminists argue that gender inequality is the structural basis of prostitution. To regulate prostitution, then, the States’ norms and policies legitimize and reinforce inequality. But, as noted by some post-structuralist theorists, the structures of inequality do not exist prior to social action4. That is, a small deviation in our daily interactions has the ability to alter structures. These deviations can be encouraged or inspired through different mechanisms, including state regulation. If we open ourselves to the possibility of people changing, and giving new meaning to new social structures, regulations can be a powerful tool for social change.
Then, there is the law. As noted by Janet Halley and other authors, contemporary feminism focuses on governance (ie, the most popular and institutionalized form of feminism which I described above as the neo-reglamentarism/abolitionism duo). It generally omits a pragmatic and distributional analysis of the consequences of legal regimes5 . That is, generally, feminist groups have limited legislative discussions to the abstract realm of what should be moral, at the expense of any analysis of how the law would operate, or does operate in the real world.
Sociologist Elizabeth Bernstein explains what happens when we stop paying attention to the effects of legal reform6. Bernstein looks at two cities taken as models of regulatory reform: Stockholm and Amsterdam. In Stockholm, the criminalizing demand was justified as promoting gender equality. However, Bernstein finds that, after the reform, prostitution went simply went underground. underground. According to some respondents, the reform could not have generated more different effects than expected: it encouraged women to move to Stockholm and, given the new clandestine nature of the market, led to increased trafficking.
Meanwhile, in Amsterdam, which opted to legalize and regulate the administration of brothels, the logic was to convert the black market into regulated one. The results were as follows. Prices fell sexual services, which led to those unable to meet the costs of regulation (mostly migrants) to migrate to countries where prostitution was deregulated and was better paid. Simultaneously, those who could absorb other operating costs (typically, native workers and large businesses) centralized the market.
For both Stockholm and Amsterdam, reforms ended up affecting the interests of those who were promised protection: particularly migrant women. Even today, many people still advocate these regulatory schemes as if they were unambiguous and indisputable successes. They are not. Deficiencies of these and other regimes are evident when analyzing its effects. In the cases that I described, at least some of the adverse effects generated by the reforms were predictable. However, the collateral damage of the reforms were not analyzed enough, not made explicit or not taken seriously either before or after the reform.
The obliteration of this damage could be caused by the fantasy that the legal requirements are automatically reflected in society. However, legal realism suggests that this is impossible7. Legal norms and public policies operate in an intricate network of social practices, existing norms, and market structures. The realists believe that in any attempt to create norms and policies, we need to caluculate both the cost-benefit, and more importantly, monitor the effects of the legal reforms. This also assumes transparency in calculating the costs faced by different social actors.
I believe that the Mexico City Legislature should side with the legal realists, taking into consideration the consequences of any reform, and being open to self-criticism. Where to begin? So far, the ALCM has done well: involving different groups — including sex workers themselves — in crafting legal reform.
1 Call to Open Sessions Parliament on regulation of sex work, Victor Hugo Romo deputy Claudia Torres (October 14, 2016) (on file with author). Hearings will be held on 19 and 26 October and 9 and 16 November in the legislative building located in Ghent # 15, Colonia Centro. Respectively, the issues to be addressed are sex work, trafficking, discrimination and health policy in relation to prostitution.
2 See Prabha Kotiswaran, Burn daub Brothels: Toward a Legal Ethnography of Sex Work in an Indian Red-Light Area, 33 (3) Law & Social Inquiry 579 (2008): 581 (describing the two feminist positions involved in debates on prostitution).
3 See, for example, Teresa Ulloa, Formas veladas de legilzar la prostitution, CIMAC News, October 4, 2016, http://www.cimacnoticias.com.mx/noticia/formas-veladas-de-legalizar-la- prostitution-n
4 An example in the field of sociology in the law is Patricia Ewick and Susan Silbey, The Common Place of Law: Stories From Everyday Life (The University of Chicago Press, 1998) (quoting Stuart Henry about structures as emergent property)
5Janet Halley et al, From the International to the Local in Feminist Legal Responses to Rape, Prostitution / Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harvard Journal of Law and Gender 335 (2006): 361 , 368.
6 Elizabeth Bernstein, Temporarily Yours: Inthimacy, Authenticity and the Comerce of Sex (The University of Chicago Press, 2007), 142 et seq.
7 For example, see Robert Hale, Coercion and Distribution in a Noncoercive Supposedly State, 38 Quart Political Science. 470 (1923); Karl Llewellyn, Some Realism Realism About -Responding to Dean Pound, 44 Harvard Law Review