Decriminalizing Prostitution Is Central to Transgender Rights

Photo illustration: two transgender flags against a background stylized like the transgender flag. Photo illustration by Slate. Photo by Getty Images.
Photo illustration by Slate. Photo by Getty Images.

This post is part of Outward, Slate’s home for coverage of LGBTQ life, thought, and culture. Read more here.

Harper Jean Tobin was just trying to keep away the cold at a bus stop one wintry afternoon, pacing back and forth and listening to music in her headphones, when she was profiled as a sex worker in her hometown of Louisville, Kentucky. She was home from college on a break, catching a bus to meet a friend, and until the police car stopped in front of her it was a perfectly normal day.

“It was at the beginning of my transition,” Tobin told me. “I was wearing a heavy winter coat with a colorful scarf and glitter eye makeup. I was so confused that after a couple of minutes [the officers] came right out and asked me if I was soliciting. Ultimately, I seemed to have convinced them that I was completely baffled by their suspicion and they let me go. The experience left me shaken, but I know now how fortunate I was that this interaction didn’t lead to intimidation, harassment, slurs, a search, an arrest, or even a shakedown for sex, as so many other trans women, particularly trans women of color, have experienced.” Tobin is now the policy director for the National Center for Trans Equality.

Trans women call it walking while trans: when police officers assume that anyone who looks like a transgender woman must be engaging in sex work. The fear and hardship that this engenders among trans women who aren’t sex workers is one of myriad reasons why the complete decriminalization of all sex work must be a central piece in the struggle for transgender human rights. Decriminalization, as distinct from legalization via regulation, would seek to strike those laws which criminally penalize sex workers from the books.

Sex work is a broad category encompassing anything from erotic dancing and pornography to street-based sexual solicitation, and may be done for money or for food, shelter, or other goods and services. According to the 2015 U.S. Transgender Survey, 19 percent of all trans people, and 47 percent of black trans women, have engaged in sex work. This does not take place in a vacuum but in the context of pervasive societal discrimination against trans people in general, and trans women of color in particular. Widespread bias against trans people severely limits access to traditional employment, housing, and health care—but also, through family rejection, to informal kinship-based networks of support.

“Crushing poverty, homelessness by bigotry, and other institutional biases perpetuate the need for ‘survival sex,’ ” explained Nat Paul, a leading expert on the intersections of trafficking and sex work, who experienced trafficking firsthand before becoming an advocate for transgender victims of the practice. Paul added that “survival sex” is often conflated with sex work, “but I try to differentiate because survival is not consent but necessity.”

“Criminalization of sex work only compounds the multiple, intersecting biases trans women face with criminal records,” Paul continued. “If sex work were legal and you weren’t exploited by officers to get out of a ‘crime,’ you’d be more likely to be able to get out of a bad situation and trust the people who were supposed to protect you [from trafficking and abuse].”

Even the most hardened believer in personal responsibility should give pause at the way the criminal justice system worsens the lives of transgender women who have already been made desperate by family rejection, poverty, unemployment, and homelessness. Nationwide, there are only a handful of safe beds in shelters where a homeless trans woman can stay, which may help explain why 48 percent of trans women who have engaged in sex work also report having experienced homelessness. Laws that criminalize sex work are particularly hard on these women; 86 percent of trans women who have come in contact with police report being harassed by them. Sometimes police will let sex workers go without arresting them, but only if they perform sexual acts for the officers, called “blow and go” by victims of the practice. If arrested, trans women are often sent to male prisons, where they become targets for harassment and abuse by guards as well as other incarcerated people.

Of course, not every trans person who engages in sex work does so to avoid homelessness. Ally Brinken, a transfeminine genderqueer person who initially got into sex work to supplement their income during grad school, enjoys being their own boss as a pro-domme. “Sex work as a profession and as a community is much more free of marginalization and discrimination which, as a student, I definitely came into contact with,” Brinken said. “Sex work as a community is very trans positive. It’s profitable, and it’s good for us, allowing us to use our bodies and our sexuality that society so often stigmatizes.”

Decriminalizing sex work may seem like a drastic measure, so let’s consider for a moment what would be needed to mitigate the factors that lead trans women to survival sex short of that step. We’d need strong anti-discrimination measures to ensure housing and jobs are available to trans women who need them, and safe homeless shelter beds where trans women could stay if they slip through the cracks. We’d need police anti-corruption measures and sensitivity training to ensure that trans women are not harassed or extorted for sex for walking while trans, and humane options in the criminal justice system for those arrested for sex work. We’d also need better options for re-entry once trans arrestees have served their time. Beyond that, we’d need societal attitudes to shift so that gender-nonconforming youths are no longer left homeless due to familial rejection or abuse. Personally, I hope one day these pieces are all in place nationwide. But decriminalization at least mitigates the harm trans women engaging in sex work face, albeit imperfectly so.

Many organizations have come to recognize how important decriminalization is within the larger framework of LGBTQ rights, including the National Center for Trans Equality, Lambda Legal, GLAAD, Amnesty International, the National LGBTQ Task Force, and many others. Even the Human Rights Campaign, the most mainstream of LGBTQ groups, does not outright oppose decriminalization. The organization has not yet explicitly come out in favor of decriminalization, either. But Sarah McBride, the HRC’s national press secretary, hinted in that direction, telling me:

No person should be put at risk of abuse or fear violence. The current criminalization of sex work in most jurisdictions puts too many at risk of violence, while undermining public health and disproportionately punishing people of color, transgender people, and those living at the intersection of multiple marginalized identities. HRC will continue to consult and work with partners and community members to ensure the safety and dignity of all, including sex workers.

Ceyenne Doroshow, a black trans former sex worker who founded the organization GLITS (Gays and Lesbians Living in a Transgender Society) to advocate for the rights of transgender sex workers, told me there’s a long way still to go when it comes to getting mainstream LGBTQ organizations to support the needs of trans sex workers. “We’re starting to see inclusive conferences for the LGBT community, but we’re still the lowest on the food chain,” Doroshow said. “This year [the National LGBTQ Task Force] finally invited all of us [sex worker advocates] to the Creating Change Conference, but it’s still a feeling in the way of separation, of not valuing trans life of any color,” Doroshow told me.

Trans women are not responsible for the forces that push them toward sex work when they are discriminated against in lawful work, nor are they responsible for the desire others feel for their bodies, which pulls them toward sex work and makes them as vulnerable to trafficking as other women are. Many (if not all) would gladly choose other occupations if they could. It serves no purpose to punish them with police harassment, fear of arrest, criminal records, and incarceration in prisons that are unwilling or unable to house them safely while they’re inside. People can disagree about whether sex work is ultimately harmful, but the oldest profession is not going away. Further punishing some of the poorest and most vulnerable people will not eradicate it, but it will make life even more difficult for a group of people who are only trying to survive.