On Thursday, the 9th U.S. Circuit Court of Appeals heard oral arguments in a case challenging California laws that criminalize sex work, which, if overturned, would have a significant impact on public health.
In March 2015, the Erotic Service Provider Legal, Education & Research Project filed a lawsuit on behalf of California sex workers, arguing that prohibitions on prostitution and solicitation are unconstitutional because they infringe on people’s right to self-determination and bodily autonomy. The federal trial court dismissed the lawsuit, rejecting the argument that criminalization undermines public health priorities, including lessening the spread of disease. ESPLERP subsequently appealed the decision to the 9th Circuit.
In response to the appeal, Lambda Legal has filed an amicus brief outlining arguments on how criminalization laws may hamper efforts to reduce transmission of HIV and other sexually transmitted infections. In a blog post on its website, Lambda Legal outlined the arguments for why the Constitution should protect those who engage in survival sex work.
“When the Supreme Court struck down laws criminalizing same-sex relationships and gay identity in Lawrence v. Texas, it rightly rejected assertions against us that ‘public health’ justified sodomy laws,” Lambda Legal writes in the post. “The movement for reproductive justice, from which we draw key legal precedents, similarly fights for facts over fiction when government tries to limit the right to contraception, abortion, or other similar personal decision-making.
“Lawrence explained that the constitutional right to liberty protects all of us when we make our own decisions about adult, consensual sexual intimacy,” the post continues. “In cases such as Lawrence and a long and venerable line of reproductive justice cases, the Court has recognized values of dignity, privacy, and autonomy extending to each of us in our sexual choices, independent of whether encounters involve love or marriage and unimpeded by moral disapproval.”
Lambda Legal also argues that commercial exchange should not negate constitutional rights of bodily privacy and self-autonomy, noting that there are many types of relationships that are transactional, just like prostitution. Examples of that include couples who sign prenuptial agreements, couples who resort to surrogacy to have children, and hook-up websites where people arrange sexual liaisons.
Lambda Legal further elaborated upon these ideas it its brief, arguing that the 9th Circuit should send the case back to the district court and order the lower court to take into account arguments that criminalizing sex work runs counter to the stated goals of disease prevention advocates.
“Amici do not dispute that the State has a valid interest in promoting public health and reducing the spread of disease,” the organization writes. “However, given the current science and scholarship, the State’s claim that maintaining modern prostitution and solicitation law is logically related to protecting public health is demonstrably false.”