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February 19, 2016

Inside the CalOSHA Hearing: Supporters & Opponents, Part 1

OAKLAND, Calif.—More than 100 people spoke to the CalOSHA Standards Board yesterday, in testimony that lasted about four hours, with most opposing the adoption of the new proposed California Health Code standard labeled Section 5193.1, and less than a double handful in support. AVN attended that meeting, and the following are some of the more profound, heartfelt (and occasionally humorous) things that were said at that meeting. Lobbyist Kevin Bland spoke first, noting that he was there representing Free Speech Coalition, and said, "As you've probably figured out, I'm not usually here to have to say we want a 'no' vote. In fact, I think this is the first time in 14 years of my practice before this Board that I've felt so compelled and been so disappointed in the process that is before the Board. I understand that this is the Division's rulemaking, that it was the Health Standard and not the Board's rulemaking, but from Day 1 in this process, we fought and fought to try to get all the performers and employees out there to be heard in this process, only to be overshadowed by special interest groups that really had no stakehold in this outcome, but it has fallen on the Division's deaf ears. I think it's a complete failure of rulemaking; never seen anything like it. Usually, I'm up her to congratulate a job well done; can't do that today, and that's unfortunate. We have a regulation that, one, failed to include the real stakeholders in the outcome, but this isn't just crying over spilt milk... it's about saving the people we're trying to protect. It's about providing them with reasonable options to do the performance and the job that they have that they chose as their profession... This regulation is kind of like asking  a brain surgeon to do surgery with boxing gloves on. It just doesn't work..." What followed were six 5193.1 opponents with medical backgrounds, including David Holland, an assistant professor of infectious diseases, who told the Board, "Everybody knows that the fight against HIV in the South has gone extremely badly, and part of the reason for this is that the only thing we've ever thrown at in in the past 30 years is trying to tell people what kind of sex they can and can't have. That's never worked in the history of mankind. The only thing that these kinds of rules and laws ever do is push the activity underground where you can't find it... The proposal in front of you is another attempt to proscribe a certain kind of sexual activity, and if you couple that with what is, like it or not, a very real market demand for condomless sex, it's going to have the opposite effect of what you intend. It's going to push the industry underground and away from any kind of regulations, which will endanger the performers. The only successful way to protect people is to offer them a choice in the way that they protect themselves, and fortunately, thanks to science, we have lots of those options..." "I'm aware of two verified incidents [of on-set HIV transmission] taking place approximately ten years apart," said Dr. Joseph Smyser, who has a Ph.D. in Public Health from UC-San Diego's Medical School. "Though these incidents need to be treated very seriously, considering the volume of production in the industry in question, I have concerns about the threshold this Division is using to determine the need for new regulation. Two incidents separated by significant time and space do not make a trend, and public health policy relies on trends; that's what public health policy is based upon, so I would like to see more evidence that this industry is creating environments that are inherently riskier than other environments experienced by the general population. I don't see that. "My second point is, the language in this regulation is so vague as to be void," he continued. "Public health regulation language must be incredibly clear. The CDC spends a vast amount of time trying to insure that what they write leaves no room for misinterpretation or misappropriation. As this is written, I am personally, with all of my public health background, not clear whether kissing would require a barrier, whether goggles and gloves would be required at all times, or how this regulation would be realistically enforced. My third point, my last one, is that good public health policy requires a significant foundation of academic scholarship, and the documents relied upon for this regulation that were provided to the public numbered less than 15, and I was only able to locate five of those that pertain specifically to the industry in question. Policies in public health need to be crafted in partnership with the populations they are meant to serve... My recommendation is for more collaboration..." "Unfortunately, the regulation we have here with us today is not only designed to fail, but it endangers adult film industry workers," assessed Maxine Holloway, who is certified in HIV/STI prevention, has a Master's in Public Health and teaches in the Graduate Public Health Department at San Francisco State University. "It does this by lowering STI testing standards, violating HIPAA rights and pushing the industry into locations that are unsupported. If this regulation passes, it will push the film industry underground and into other states with little or no industry oversight... Approving this regulation will result in a public health nightmare. Every standard practice for creating a public health intervention was disregarded in the development of this regulation. A Standard community assessment was not completed; therefore, there is a deficit of evidence-based data and an embarrassingly shallow understanding of sex workers in the adult film industry. The adult industry and public health workers continually reached out to the Divisions during the development of this policy, and they were continually shut out and ignored. These biases and negligence would not survive the examination of even my first-year public health students..." Even more forceful was Dee Michelle, the HIV Services Manager at St. James Infirmary. "The requirements of gloves, condoms and goggles on pornography sets will ensure the eradication of the adult film industry in California," she declared. "These regulations, backed by AIDS Healthcare Foundation's Michael Weinstein and his moralist crusade against pornography, treat porn sets like medical laboratories. The regulations leave no room for performer choice, nor take into consideration of using alternatives to barriers such as PrEP or the successful industry-wide use of the Free Speech Coalition's PASS testing system. At no time has CalOSHA had industry performers at the table to decide on these regulations. These meetings have occurred in backdoor sessions under the political pressure of Weinstein and AHF. Likewise, no sober public health assessment has been made in these discussions. The orders read like an old campaign poster during the early days of the AIDS epidemic: 'Just wear a condom.' But as we know, it's not so simple as that. Performers and producers have built a testing system that has prevented any new on-set HIV positive case in over ten years on a PASS-regulated set. These measures will undo such a system, drive California porn production underground and create a potential for more performer risk. In any public health research, we see that driving sex workers underground creates greater health problems, more fear, stigmatization and shame. Workers will be criminalized if, for example, they are caught on an underground set or will simply turn to less safe options for sex work. Hundreds if not thousands of adult performers' jobs are at stake." The final medical professional was Dr. Hernando Chavez, a Doctor of Human Sexuality, psychology professor and past president of the Society for the Scientific Study of Human Sexuality. He was highly critical of reducing the testing regimen from two weeks to three months, and had some important facts about condom use for the Board. "We oftentimes hear about [condoms being] '98 percent effective' or '94 percent effective' or 'almost foolproof,' but that is in a sort of perfect bubble, laboratory experiment setting," he stated. "When it comes to real use, typically we find that the numbers are closer to the mid-70s, and there's a lot of human error and condom breakage that occurs. For example, I was doing some research and I found that in this book Contraceptive Technology by Hatcher, they found that the common rates of falling off the penis were .6 to 5.4 percent of the time with vaginal intercourse... one in 20 acts. There's a number of acts that go on in this industry, and imagine if condoms were falling off, because this issue has occurred. How would that put people at risk in addition to the testing protocols that I just mentioned, which are far worse? In addition, they looked at how many times the condom would slip and they found that that was up to 3.4 to 13.1 percent of the time while having intercourse... With anal sex, they did four studies with gay men, and they found that the rate of breakage was .5 to 12 percent... To not acknowledge that condoms break would be a detriment to public health and to performer safety... We can throw in other things like, for example, condom friction. When rubber and rubber, latex, is rubbed against each other, you will find that that motion will create friction, which will create heat, which will also add to breakage, so in certain acts in the porn industry, they may have that propensity. There are a number of factors that condoms can also add to; for example, condom burn, with additional tearing that has been shown can happen on any part of the body with that latex rubbing up against membranes of the body." Also on hand with their views during the meeting were Mike Chase, a Board member of the ACLU of Northern California, and Constance Penley, a Film & Media Studies professor at UC-Santa Barbara. Cautioning that he was here in his capacity as a "private citizen and human rights advocate," Chase stated that, "From my human rights perspective, the proposed regulation targets a group that is already heavily stigmatized and marginalized. The proposed regulation also perpetuates harmful stereotypes about workers in the adult film industry, and those sterotypes cause real and substantial harm to those workers, who then suffer legal but wrongful forms of discrimination. The lack of recognition of the personal agency of adult sex workers is also an affront to their dignity. 'My body, my choices' has been a cornerstone of the abortion rights movement and is also relevant to this issue." Dr. Penley was equally forceful. "I believe these regulations are akin to the draconian voter suppression measures enacted to address the nonexistent problem of voter impersonation at polls; measures that are thankfully being overturned by courts around the country because they are purely discriminatory," she analyzed. "I've been teaching, researching and writing about the adult film industry for 23 years. Since 1993, I've been teaching a course on pornography as film and popular culture, as a genre and an industry to advanced film and media studies majors. My course covers the history of filmed pornography, starting in 1907, and the substantial and rapidly growing body of scholarly literature on the adult industry. In any given quarter, I've had as many as 15 to 20 guest lecturers from the adult industry in my class. They are performers, producers, sexual product designers and publishers of the adult industry trade journal, as well as medical professionals and policy makers related to the industry... At the end of my porn course, I invariably get two questions from my students: 'Why do we see nothing of this rich and compelling history in our regular film history classes,' and second, the question I invariably get, 'What are we to make of the fact that the nicest, smartest, most generous and articulate people we are ever likely to meet are the guests in your porn class?' Please join me, my students and fellow researchers in listening to and learning from the people who are most affected by your vote today." The final non-industry professional to address the Board was attorney Karen Tynan, who has won several victories for adult studios against CalOSHA's attempts to fine producers for alleged violations of the health code. Her nearly decade-long involvement in the industry's interactions with CalOSHA has informed her views on this controversy—especially regarding the Division's choice of who to represent the industry in their discussions. "When I looked back at my emails from 2010, I saw that the performer representative on the stakeholder committee was a Nevada brothel worker who had not worked in adult film for a substantial number of years," she noted, referring to former actress Anita Cannibal. "Her voice did not add to the stakeholder information or the process. Instead, performers were left out of the process. I could go on about legal and procedural issues, but what I want to ask is for you to take this last opportunity and to listen to all the performers who have taken a day without pay to come here and give you their final request to vote 'no' on 5193.1." To be continued...

 
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