Why Must We Recognise Sex Work as ‘Work’?

The plight of sex workers during the pandemic received the attention of state and judiciary alike. NISHTHA GUPTA dissects the debate between those who want to abolish sex work and others who want to recognise the rights of sex workers and ensure they have a better life.

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In an advisory recently put out by the National Human Rights Commission [NHRC], sex workers were recognized as informal workers under the category,  ‘Women at Work’. The NHRC advisory on ‘rights of women’ issued to the Centre and all state governments came at a time when sex workers were facing adversities during the COVID-19 pandemic.

The National Network for Sex Workers (NNSW), a network of female, trans and male sex workers in India, along with 18 other organizations submitted a recommendation to the NHRC.  It stated that according to a conservative estimate, there are 1.2 million female sex workers in India, with an estimate of 6,88,751 “registered” female sex workers who were receiving services from the Ministry of Health and Family Welfare.

This submission highlighted that while the state had provided immediate relief to many marginalized groups, sex workers were, however, not included in any of the relief packages.

The NHRC took cognizance of the issues raised in these recommendations made by 19 organisations. Thus, the advisory addressed concerns such as access to reproductive care, food, hygiene products, testing, and treatment. It also advised authorities to recognise the problem of non-traditional living arrangements, lack of documentation, and non-recognition as a valid informal worker making them all the more vulnerable. Such provisions were included keeping in mind that most sex workers are Dalits, migrants, or belong to the LGBTQ+ community.

In September, the Supreme Court had directed that dry rations be provided to sex workers without insisting on identification proof. The petition was filed by Durbar Mahila Samanwaya Committee (DMSC) and offered some relief to sex workers at the time of the pandemic. The court considered the direction set by Maharashtra and Bengal, that came out with similar resolutions.

These institutional rehabilitation centres are as good as prisons. They do not address the diverse economic, legal, and health needs of sex workers. 

Small developments like these suggest that the struggle lead by unions and collectives to support sex workers is slowly seeing the light of day.

Despite this, the discourse on the recognition of sex work as ‘work’ is extremely contested even among those who appear to be rooting for human rights.

The need to reexamine the abolitionist approach

There is a dispute that exists between the proponents of anti-human trafficking and pro-sex work.

Both are severely divided on their views towards commercial sex.

The former sees the demand for sex in the market as a reason for the proliferation of human trafficking. The latter seeks recognition of sex work as work, arguing that only consolidation of labour rights within sex work can help stop human trafficking.

Those taking a stance against sex work as work, stick to the conservative terminology of ‘prostitution’ for consent.

Shakti Vahini argues that the recognition of sex work as work is a violation of the fundamental right to livelihood for those who practice it. The ‘end demand’ policy embodies this abolitionist standpoint. The government tries to directly ban and strictly prohibits the peripheral activities associated with sex work.

Ultimately, everyone falls under the suspicious eye of the state for either being the victim or criminal.

Global Network of Sex Work holds that constant raids deny the value of an adult person’s agency to consent and is counterproductive. It disturbs their power dynamic with the law enforcement institution and clients.

Under the ‘raid and rescue model’, the sex worker is treated as a victim. It refers to the indiscriminate raiding of their workplace, which sometimes also doubles as their residence, and placing them in government rehabilitation centres.

These institutional rehabilitation centres are as good as prisons. They do not address the diverse economic, legal, and health needs of sex workers.

So even if the abolitionists deny the existence of consent to work, their position doesn’t really change the status quo for sex workers.

Global Network of Sex Work holds that constant raids deny the value of an adult person’s agency to consent and is counterproductive. It disturbs their power dynamic with the law enforcement institution and clients.

This perception that validating sex work as work will create a moral hazard of promoting human trafficking is not entirely true. The recognition of it being valid work by no means implies closing all exit points. Forced labour and trafficking of any person for any purpose at any place is a crime that should be brought to justice.

The clubbing of girl child and adult consenting women is used to justify unreasonable restrictions on sex work which only makes the problems in the industry worse and hidden from the law. Thus, echoing the age-old narrative of paternal protection.

An abolitionist approach only makes it harder to protect victims.

What can the government do to help sex workers? 

Currently, sex workers are heavily dependent on NGOs and private donations by individuals.

During the pandemic, the funding for such organizations aiding sex workers has shrunk considerably owing to the amendment in the Foreign Contribution Regulation Act. PM Cares has also played an indirect role in cutting out funds to NGOs since many mega corporates had diverted their CSR funds towards it.

It must also be realized that the essence of human rights is not in following what the law dictates verbatim but to interpret and if required seek to change the law to treat the subaltern’s experiences as valid making it more inclusive.

The government can either provide, regulate, or finance.

But, the government must know where and when to regulate.

To provide for the needs of sex workers, the government needs to ensure their inclusion in welfare policies such as skill development, food security, shelter, etc.  The government could follow the NHRC by consulting nonstate actors including sex workers’ unions to address the negative implications of the current schemes.

The Seventh Report of the Panel on Sex Work, constituted by the Supreme Court in 2012, recommended adopting community-based rehabilitation, against institutional rehabilitation, thereby recognising the efforts of existing unions and organisations.

The National Network of Sex Workers argues that the workers could in fact be of help to the law enforcement agencies, by helping them identify victims and perpetrators in the complex trafficking rackets.

NHRC’s decision should indeed be celebrated as the first step in a more inclusive direction. It is a product of the long-drawn battle of sex worker unions and related organizations. It must also be realized that the essence of human rights is not in following what the law dictates verbatim but to interpret and if required seek to change the law to treat the subaltern’s experiences as valid making it more inclusive.

The policy goal should be to enhance the agency of sex workers.

Sex workers deserve to be seen in their own right.

Sex workers’ right to dignity is also a human right. They do not deserve to live in the constant threat of being raided and stolen of their opportunity to work and provide for their families.

(Nishtha Gupta is a student of Political Science at Kamala Nehru College, New Delhi. Views are personal.)

The article was originally published in The Leaflet.