Policy Reform for Sex Work: Criminalization and Decriminalization in the Context of Feminist Ideologies, Social Determinants of Health and Human Rights

By Khine Su Win and Fabio Saini

 Criminalization of voluntary sex work is one of the structural determinants of inequities for Female Sex Worker (FSW) and maintaining social exclusion inherent in patriarchy and heteronormativity. In recent years, many national policies reform for sex work appear to reflect either abolitionist feminism or sex positive feminism. Whether these policy approaches address structural determinants of inequities for FSW as women at bottom of heteronormative hierarchy remains to be seen.

Objectives: 1) To identify whether current legal framings of sex work challenge or maintain heteronormative and patriarchal constructs of women engaging in sex work, and how this in turn contributes to heightened health inequities especially for FSW. 2) To analyze whether opposing feminist ideologies, namely the abolitionist and the sex positive ideologies, contribute to challenge or reinforce heteronormative and patriarchal constructs of women in sex work, as well as the contribution of these ideologies to rights-based frameworks. 3) To provide suggestions from a rights and equity perspective for policy reform for sex work especially in South East Asia.

Methodology: This study is a content analysis of literature by applying the Critical Frame Analysis (CFA). The CFA is a methodological framework for in-depth analysis of diverse political framing in diagnosis (What is the problem?) and prognosis (What is the solution of the problem?). The diagnosis and prognosis are related to different theory concepts of gender inequality, and gender political discourse such as intersections with other inequalities, inclusion of voices, and addressing structures that produce gender inequality.

Findings: Abolitionist feminism conceptualizes gender inequality within hegemonic patriarchal masculinity paradigm with no intersections other socio-economic inequalities. It constructs a victim identity for all women engaging in sex work by conflating prostitution and human trafficking for sexual exploitation, and denies possibility of voluntary sex work. It advocates partial criminalization of prostitution i.e. criminalization of clients and third parties, and the social rehabilitation of the victims’. Sex-positive feminism problematizes heteronormativity as a root cause of gender inequality. It recognizes voluntary sex work as work and views criminalization of voluntary sex work as a form of structural violence against women who do not conform to the victim identity. Moreover, sex positive feminism examines how gender inequality intersects with other drivers of inequities such as class, ethnicity, or race. The proposed solution is decriminalization of sex work to provide legal protection as workers and decreases their vulnerabilities to ill health and abuse.

Conclusion: Abolitionist feminism denies personal agency and voice of voluntary FSW who do not identify as victims’. Thus, it reinforces inequitable power hierarchies of heteronormativity, and contributes to social exclusion of voluntary FSW and structural violence against them. It also reinforces patriarchal construction of womens subordination to men by constructing women as powerless victims. By contrast, sex-positive feminists legal framework to sex work challenges power dynamics of heteronormativity by addressing the structural violence through a rights-based frame work, and transforms cultural paradigm by constructing voluntary FSW as a normative group. However, both ideologies have limitations in their conceptualization of sex work and FSW as well as of mens roles in challenging and transforming the power structures at the root of gender equality.