Sex Workers Appeal Sex Work Decriminalization Lawsuit Loss

SAN FRANCISCO—The Erotic Service Providers Legal Education Research Project (ESPLERP) has filed a brief in the Ninth Circuit U.S. Court of Appeals challenging the Northern California District Court’s judgment dismissing the group's lawsuit, ESPLERP v Gascon, which challenged California’s anti-prostitution law Penal Code 647(b) on the grounds that it is unconstitutional. The appeal, filed by ESPLERP attorneys H. Louis Sirkin and D. Gill Sperlein, argues that "all Americans have a fundamental liberty interest protecting them from unwarranted government intrusion in their intimate lives" under the Due Process clause of the Fourteenth Amendment, and that "the State cannot wholly outlaw a commercial exchange that is related to the exercise of a fundamental right." The district court had held that the Fourteenth Amendment could not be used to protect transactions in which some paid, or was paid, for sexual relations. The brief goes on to note that for much of U.S. history, prostitution had been an accepted part of public life, that as settlers moved west, prostitutes and brothels moved with them, and that, "for much of our nation’s history, the commercial exchange of private sexual activity—at least where its solicitation and consummation was conducted discreetly and not on the public streets—was widely accepted, was not illegal, and was, in fact, integral to our development." "California took steps to criminalize prostitution in 1872 when it enacted Penal Code Section 647...," the brief notes. "However, '[p]rostitution and solicitation per se were not outlawed in California until 1961.' ... In 1961, the vagrancy statute was repealed and replaced with section 647(b), which made prostitution and solicitation a misdemeanor. Professor Arthur H. Sherry, the author of the 1961 law criminalizing the commercial exchange of sex, did 'not offer any rationale for section 647(b), unlike the section's other subdivisions, beyond remarking that 'the pimp, the panderer, and the prostitute cannot be permitted to flaunt their services at large.'" [Citations removed here and below] Three of the appellants have stated that they have, in the past, provided prostitution and prostitution-like services in the past, both in California and Nevada (where it's legal), and that they "would all again engage in their chosen profession of erotic service provider but for California’s current prohibition and criminalization of sexual activity for hire... Appellants each fear that they may be prosecuted by the District Attorneys and the Attorney General under California’s prostitution or solicitation laws if they engage in sexual activity for hire." However, when the plaintiffs got to district court to argue the original lawsuit, despite the U.S. Supreme Court's evolving views on sexual behavior as reflected in such cases as Lawrence v. Texas (consensual sodomy) and Obergefell v. Hodges (same-sex marriage), the district court was "'not persuaded by [Appellants’] contention that the Supreme Court has shifted the definition of the protected liberty interest to comprise merely sexual or intimate conduct, as opposed to the relationship in which the sexual or intimate conduct occurs.' As a result, the District Court applied only rational basis scrutiny when reviewing the constitutionality of Section 647(b). Using this rational basis review, the District Court found that the purported interests offered by the Appellees—'preventing a climate conducive to violence against women and potential human trafficking, preserving the public health, and deterring the commodification of sex'—were legitimate and rationally related to the state law." It's the judge's decision to apply only "rational basis scrutiny" to the prostitution laws that the appellants take issue with. Under the "rational basis" test, the courts will uphold a law if it is rationally related to a legitimate government purpose, and does not impact a fundamental liberty interest or "suspect classification"; that is, race, national origin, or religion. Appellants argue that fundamental liberty rights are indeed implicated in prostitution laws, and believe that higher levels of scrutiny should be used. "When it conducted its deferential, rational basis review, the District Court correctly noted that moral disapproval is not a rational basis for criminalizing conduct," the appellants argue. "Nevertheless, the District Court incorrectly concluded that 'deterring the commodification of sex,' 'preventing a climate conducive to violence against women and potential human trafficking,' and 'preserving the public health' were legitimate and rational bases for this unwarranted intrusion into Appellants' intimate lives. In actuality, none of these interests legitimately justify the unwarranted governmental intrusion upon Appellants' intimate lives. As such, the District Court should have denied the State’s motion to dismiss." The brief then goes on to dissect a number of previously decided cases dealing with both the scrutiny issue and with prostitution services in general, noting in particular Justice Antonin Scalia's dissent in the Lawrence case, where he wrote that, "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision." [Emphasis added in brief.] Indeed; one of the appellants' arguments is that the prostitution laws, whose origins are mainly religious in nature, would not survive higher levels of scrutiny. They focus particularly on the state's claim that the anti-prostitution laws "deter[] the commodification of sex," and argue that whether or not sex is "commodified" isn't any of the state's business, especially since it implicates a fundamental constitutional right. "While the District Court below correctly determined that moral disapproval is not an adequate basis for criminalizing conduct," the appellants argue, "it nevertheless found that the State could justify Section 647(b) by claiming to advance an interest in deterring the commodification of sex. This was error." They similarly take issue with the idea that the current laws deter crime and/or sexually transmitted diseases, though several studies show those arguments to be false. The brief also targets the laws as violations of the appellants' First Amendment rights of free speech and association. “The District Court Judge’s decision was deeply flawed,” said Maxine Doogan, president of ESPLERP. “He acknowledged that Lawrence v Texas defined a constitutional right to privacy in individuals’ sexual conduct, and also acknowledged that morality was not a basis to deny that right, but then found flimsy legal arguments to deny that right. He also ignored the recommendations of international organizations like Amnesty International, the World Health Organization, [British medical journal] The Lancet, Human Rights Watch, and the UN Global Commission on HIV and the Law, all of which call for the decriminalization of sex work.” “Lawrence v Texas made it clear that governments may not intrude into the private lives of consenting adults by criminalizing their sexual behavior,” said Mike Chase, longtime human rights activist. “It is time that the courts fully recognized those rights.” Contributions to support the ESPLERP court case can be submitted through ESPLERP's crowd fundraiser LitigateToEmancipate.com.