Sex Work, Labour Unfreedom, and the Law

By Dr Katie Cruz, Lecturer in Law (University of Bristol Law School).*

On 2^nd June, sex workers and activists gathered globally to mark the struggle for sex workers’ rights. International Sex Workers Day is just one day of the year dedicated to the struggle for sex workers. Activists gather on March 3^rd to mark International Sex Worker Rights Day and on December 17^th to mark International Day to End Violence against Sex Workers. These dates occur because of the historical and ongoing violence against, and exclusion of, sex workers. Sex workers are subject to interpersonal forms of violence, from police officers and clients, and the structural violence of criminal justice and immigration institutions. They are criminalized and affected by often-punitive anti-trafficking laws and policies, and they are subject to heightened immigration controls, including the criminalization of movement and working. The Tory government’s hostile environment has created additional layers of institutionalised insecurity for many migrant sex workers, including restrictions on access to housing, healthcare, education, and banking services.

In a recent article I wrote for Feminist Legal Studies, I argue for a Marxist feminist methodology capable or describing and opposing these intersecting exclusions and oppressions as they apply to migrant sex workers in the UK. However, this method can be used to understand the precarious living and working conditions of all (sex) workers. In this post, I make some remarks in relation to citizen sex workers in the UK and Jamaica, where I am currently conducting fieldwork with Prof Julia O’Connell Davidson and Dr Jacqueline Sanchez Taylor.

My methodological starting point is capitalist relations of (re)production because I believe that the problem that we face, as activists and workers, is the exploitative and alienating relationships we develop with each other and nature as we interact to (re)produce the necessities for life. Our labour, or practical human activity – so the work we do for a wage, in the home, and in the community – is being harnessed by capitalism; we are being exploited, alienated, and dispossessed and this is happening in and through gender, ‘race’, and the law.

I argue that capitalist relations of (re)production exist on a continuum of unfreedom. At one end of the continuum is ‘free’ labour; the quotation marks signalling that freedom within capitalism cannot exist because we cannot reproduce families, communities, and ourselves without dispossession, exploitation, and alienation. ‘Free’ labour, then, is characterised by the limitation of labour unfreedom. It exists where waged and unwaged labour is embedded in a system of labour and social rights and protections, including a living wage, freedom to change employers and to contest conditions, freedom of movement, access to affordable housing, education, childcare, and eldercare.

In order to understand how we strive for freedom, Marxist feminists reject any approach that privileges ‘structure’ over ‘agency’, ‘experience’ or ‘consciousness’. In other words, because our everyday labour relationships are constitutive of, and are constituted by, capitalist relations of (re)production, it is immanently possible for us to collectively contest these very same relations. This is particularly important in the context of sex work and debates about sex work or “prostitution”. Sex workers voices are not often heard and academics tend to focus too much on constraints or choice rather than the dynamic interplay between structure and agency.

What, then, does this tell us about the legal expression of capitalist relations and (migrant) sex work? Starting with migrant sex workers in the UK, immigration law has repressively incorporated these workers. It participates in their ‘othering’ by associating their labour with other geographic spaces. Migrant sex workers do not arrive with a visa to work in the sex industry; they are not tied to an employer. Rather, the differentiated exclusion of migrant sex workers and heightened policing through a combination of immigration law, anti-trafficking law, and absent labour and social protections and rights associates migrant sex workers with ‘other’ jurisdictions and spaces. This legal ‘othering’ is reinforced by media discourses and prevailing gender, sexual, and racial stereotypes in the UK, and globally. Migrant sex workers’ ‘other’ status is then justification for their devaluation and abuse by the state, employers, intermediaries, and clients.

And citizen sex workers experience many of the same legal exclusions in the UK. For example, then, labour law is rarely directly involved in the commodification of sexual services. Citizen sex workers who work in managed environments experience employment precarity; the dominant employment relation is false self-employment, and so workers have no certainty of employment, little control over the labour process, no regulatory protection, and, while wages can be adequate there is no certainty that a debt relationship between the worker and management will not emerge. Unless sex workers register as self-employed they will not be able to access many social welfare protections that depend on being in paid employment.

As a form of work that often takes place in the ‘private’ sphere (the ‘thick walls’ of the home, apartment or brothel) it is not seen as ‘real’ work by the employers, clients or the state. The relationship between sexism, the desire to control female sexuality, and the stigmatisation of sex workers also helps to explain on-going criminalisation and reluctance to see sex work as a legitimate form of service work. This mix of invisibility, devaluation, criminalisation, and state disavowal all combine to allow managers and clients to practice high levels of exploitation, control, and abuse. And through conversations and a collaborative workshop with the Sex Worker Association of Jamaica we have learnt that Jamaican sex workers are also rendered criminals and second-class citizens in a host of ways that do not turn on having illegal status.

If ‘free’ labour exists where all labour – paid and unpaid – is embedded in a system of labour and social rights and protections, we must conclude that the vast majority of (migrant) sex workers globally populate the extreme end of unfreedom. At the same time, Marxist and social reproduction feminists stress the fact that

“interests and relational dynamics can and do compete with the capitalist imperative. Struggles for access to abortion, childcare, better wages, and healthy drinking water, for example, reshape relations between workers and capital, and those among workers themselves. If successful, they chip away at patriarchal and other forms of relations; if they fail, they tend to reinforce such relations”.[1]

Sex workers and activists in the UK, Jamaica and globally are discussing and demanding labour ‘freedoms’. They are arguing for individual and collective labour rights in combination with regulation of labour intermediaries, recruitment agencies and brothels/clubs, decriminalisation, social welfare entitlement, and radical restructuring of border controls in recognition that these ‘freedoms’ will transfer a significant amount of power to (migrant) sex workers. In the words of one Jamaican sex worker, it is time to stop “using, abusing, and refusing sex workers”.

* This piece is based on K Cruz, ‘Beyond Liberalism: Marxist Feminism, Migrant Sex Work, and Labour Unfreedom‘ (2018) 26(1) Feminist Legal Studies 65–92.

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[1] S Ferguson, ‘Intersectionality and Social-Reproduction Feminisms Toward an Integrative Ontology’ (2016) 24(2). Historical Materialism 38–60, 52.