Gender Sexuality and Law: Sex
Workers' Rights
Harper Jean Tobin
Contributing Writer
There’s
a groundbreaking labor struggle going on in our country today, and I’m not
talking about steel, shipping or even public school teachers. No, this is a
field with a lot more law students in it: stripping.
In
the lap-dancing theaters, the courts and the city labor and women's commissions of San
Francisco, performers are fighting for their right to a fair wage. Generally
dancers don’t receive regular wages at all: they rely entirely on tips. And in
San Francisco, club owners often charge dancers “stage fees” for each shift
they work. Charging this is unfair and illegal, dancers have organized, lobbied
and litigated for basic employee rights in California, Alaska, Texas,
Minnesota, Pennsylvania and Oregon.
Regulation
is nothing new for the legal sex industry, of course. But strip clubs, sex
shops, porn producers and the like have generally been subject to legal
regulation aimed at the simple suppression of commercial sexuality. Laws about
where and when adult-oriented businesses can operate are plentiful - often
driving some out of business - as are bizarre rules about the ratio of type of
alcohol served to the amount of exposed flesh. A generation ago, adult
filmmakers and bookstore-owners were haunted by frequent police busts on
charges of pimping, pandering, or just plain obscenity.
To
the extent that there was any element of concern about the welfare of models
and performers in all this, it was based on the implicit assumption that sex
work was inherently degrading. In other words, the presumed answer to concerns
about the exploitation of women through commercialized sex was to make sure the
whole business was as restricted and marginalized as possible.
Today
sex workers -- phone sex operators, strippers, porn starlets, professional dominatrices and the like -- are stepping forward to insist
that the sex industry be treated like any other legal industry, and its workers
like any other workers. A favorite example of sex worker advocates -- and the
subject of the documentary Live Nude Girls Unite! -- is San Francisco's
Lusty Lady. In 1995 it became the country's first and only unionized strip
club. Last year the union purchased the club, and it is now run as a workers'
cooperative. If women are exploited in the industry, advocates say, the reasons
are the same as in other fields, and so are the solutions. And some courts and
government agencies are agreeing.
Which is not to say that sex workers will always be pleased with
the results. Just over a week ago, the California Occupational Safety
and Health Administration (Cal/OSHA) shocked performers and producers alike
when it issued over $30,000 each in fines to two adult film companies for
failing to require performers to use condoms. This action came after four
performers tested positive for HIV earlier this year.
While heated debates will continue inside and outside of the industry about the wisdom of an industry-wide government mandate versus self-regulation, the simple fact that California is treating this as a workplace safety issue is a historic step. Cal/OSHA has even set up a substantial webpage with "Vital information for workers and employers in the adult film industry."
In the transition from suppresion-oriented to worker-oriented regulation, a key issue will be the legal status of performers. Porn producers and club owners generally claim that performers are independent contractors, and therefore lack the legal rights of employees vis a vis wages, working conditions, organizing, etc. New hires are often told verbally or in writing that they are independent contracters, but saying this does not make it so. Cal/OSHA clearly thinks otherwise about adult film actors, and court rulings in several states have held that nude dancers are employees, too. Another issue will be the proper limits of regulation: pornographers fear safety regulations will go too far, e.g. requiring performers to wear safety goggles to protect against any flying bodily fluids. It's not hard to imagine how workplace safety regulations could become onerous for dancers, as well. After all, a sense of spontaneity and naughtiness is essential to the business. But as adult businesses and regulatory agencies get used to working together, and as sex workers continue to organize and advocate for themselves, these currently uncertain questions are likely to get smoothed out. And as adult entertainment develops into a special area of employment law, all the more reason for you future lawyers to get out there and do some first-hand research!
Feedback? Suggestions for future columns? Contact hjt3@cwru.edu .