Fence-sitting and its discontents: the fear of taking a stand on sex work in the US
The terrain for sex worker activism in the United States has been shaped by the silence of those who fear the consequences of standing with sex workers
The anti-trafficking field in the United States is composed primarily of organisations who provide direct services to survivors of human trafficking. This typically includes social services such as counselling and legal services. The US government provides around $300 million per year to this field, and year after year that funding increases and the field grows.
Beyond their main work of helping survivors, anti-trafficking organisations advocate for policy change and reforms to benefit survivors or prevent human trafficking. At the state and federal levels, they contribute their knowledge about how trafficking happens and how people are affected by both trafficking and official responses to trafficking.
The federally funded anti-trafficking field interacts with sex workers when they serve and protect survivors: survivors may work alongside, or are at times themselves, voluntary sex workers. Criminalisation of the sex industry clearly harms survivors of trafficking in the sex trade. However, the majority of these organisations believe that their receipt of federal money prevents them from advocating for the end of criminalisation. A legislative provision known as the ‘Anti-Prostitution Pledge’ requires federal grantees to sign a statement that they will not “promote, support, or advocate the legalization or practice of prostitution”. This was first enacted in 2003 as part of President George W. Bush’s programme to fight HIV/AIDS around the world (which also included a provision directing one third of prevention spending towards ‘abstinence only’ initiatives). Shortly thereafter, the Anti-Prostitution Pledge was also added to the Trafficking Victims Protection Act, which authorises the funding for anti-trafficking organisations. Its authorship is credited to Chris Smith, a Republican senator still in office.
A chilling effect
HIV/AIDS organisations brought a constitutional challenge to the Anti-Prostitution Pledge and, in 2013, the US Supreme Court found that it violated their First Amendment rights. However, the provision in the trafficking act is a separate law. It has not yet been challenged, and continues to be in force for both foreign and US-based anti-trafficking organisations.
Some federally-funded anti-trafficking organisations believe they can support decriminalisation without “promoting legalization”, and thus not run afoul of the law, or that there is other room for interpretation. But the threat is real. Organisations have been audited and questioned if they are suspected of supporting the decriminalisation of sex work or of defending sex workers’ rights.
This has a chilling effect upon how organisations approach sex work. Some anti-trafficking organisations do oppose decriminalisation, and they may speak freely. But those that support sex workers must err on the safe side. They hide their partnerships with sex workers’ rights defenders, prevent their staff from testifying in support of legislative proposals championed by sex workers, and edit their public communications to avoid any potential violations of the pledge. The threat of losing funding – and of trafficking survivors losing what may be their only resource in a community – causes organisations to be cautious, fearful, silent.
There is tendency to focus on moral questions when the sex industry is discussed – not on the evidence of effects or details of implementation.
The Anti-Prostitution Pledge is a clear act of political silencing and compulsion that contravenes First Amendment free speech protections. It has emboldened those opposing sex workers’ rights, who face no such restrictions on promoting their views. And it has enabled anti-trafficking organisations who support or would like to support sex workers to collectively sit out this important conversation. More broadly, it has restricted the development of knowledge in the anti-trafficking field and in the public sphere about the scope, details, and impact of various legal approaches to commercial sex.
There are only a few examples of decriminalised sex work in the world, with New Zealand being the most well-known model. However, the effects of this approach where it has been implemented have been ground-breaking. Decriminalisation has reduced harm in the sex industry and opened avenues to justice previously unimaginable. Developing a similar model within the US would take study, collaboration, and a knowledge and evidence base. This is hard to do when you cannot talk freely with all stakeholders about decriminalisation. Thus, when the sex industry is discussed, there is tendency for opponents and even proponents to focus on moral questions – not on the evidence of effects or details of implementation. Decriminalisation bills are not treated as a serious and necessary public policy proposals that they are.
Funders on the fence
The power of the Anti-Prostitution Pledge is partly due to the limited sources of funding that anti-trafficking organisations have outside the federal government. Local community foundations can rarely sustain these programmes, and national funders are unlikely to fund direct service provision at a national scale – the bread and butter of most of anti-trafficking organisations.
Philanthropic foundations are also strongly inclined to stay ‘on the fence’ regarding sex work. In 2019-2020, the Sex Worker Donor Collaborative worked with Strength in Numbers to research global funding for sex worker rights, including what strategies would help funders to deepen existing support or unlock new funding. In addition to the tragically low amounts of funding available (less than 1% of human rights funding in 2018 was given to sex workers’ rights), we also identified several reasons why philanthropists are reluctant to stand a stand.
For many funders, fence-sitting happens pre-consciously. Even funders who regularly support programmes focusing on poverty, women’s rights, racial justice, criminalisation, and other issues in which sex workers’ rights are central, often don’t feel like they have to take a position on sex work. They may claim they don’t know enough about sex work to form an opinion, because sex workers and sex workers’ rights defenders are not seen as a community which these funders need to consult or be accountable to.
On some level, these funders erase the many sex workers affected by their grant-making because they are uncomfortable with the existence of sex work. Although sex workers routinely traverse and code-switch through many terrains, there is a strongly held idea that sex workers can’t be made palatable. That bringing them more fully to the table would disrupt the flow of philanthropy culture, which is polite, wealthy, and largely white. As the reproductive justice organisation Women with a Vision attests, sex workers’ “existence is political”. Many funders can easily avoid this discomfort and face no negative consequences.
Fear and power
There are other funders who are clear that their grants affect sex workers, yet consciously avoid taking a clear position. We interviewed some of these funders for the 2019-2020 research. Some encounter strong and opposing opinions from their grantees regarding the best approach to commercial sex. In the US, there is a growing movement to implement the Nordic model of criminalising just those who buy sex, with many survivors as spokespeople. This leads to political disagreement and counter-campaigns, with people with lived experience of the sex industry on both sides. When faced with this disagreement, some funders find it impossible to take a position reflective of all of their grantees.
Funders have something to lose if they align themselves with unpopular ideas.
Other funders are allies to sex workers, but quiet ones. They may want to fund sex worker rights defenders and sex worker-led organisations yet don’t take the plunge. They may find a way to fund these organisations, but at a distance, through intermediaries and without fanfare. Funders have something to lose if they align themselves too closely with unpopular ideas. Condemnation of sex workers runs deep in almost every culture, and criminalisation creates further stigma. Foundations have public reputations and wealthy individuals, including individual donors, have their own reputations and standing to protect. They also have little reason to identify with sex workers’ struggle, so reputational risk can easily outweigh their interest in supporting the cause.
Foundation staff’s power is based on relationships with these wealthy individuals. They may fear they will lose some of the relational power they need to get their recommendations and priorities accepted by their boards, and thereby to get funding to other important communities. We found that foundation staff we interviewed associated sex work above all with reputational risk. Some were even reluctant to even talk to us at all. This fear is not completely unfounded. Many human and civil rights organisations have supported sex workers in their advocacy and public statements without reproach. But in a few cases, like Amnesty International, there was a severe backlash. Unfortunately, when funders are silent in a world where the narrative against sex workers is so mainstream, this silence prevents the world from knowing how much support there really is.
Getting off the fence
As many other movements have proven, fence-sitting is a refuge that cannot last forever. Discomfort feels personal but is also cultural, and culture changes. We have seen it change for transgender people as they have asserted their full humanity, gathered allies, suffered backlash, and pushed forward to a future where trans identity is more accepted and celebrated. We also see sex workers taking their rightful leadership of movements and conversations that affect their lives.
Legislative campaigns are one lever they are using in the US. More and more sex workers are moving from talking about decriminalisation to actually writing and proposing bills and ballot initiatives to change laws. This has already happened in at least eight states in the US, and if this wave continues it will become harder and harder to avoid taking a position. Politicians will have to meet with sex workers, hear their testimony in public hearings. Residents will open their doors to sex workers and their allies with clipboards and talking points, or see their proposals at the ballot box. Candidates will be asked where they stand. Will anti-trafficking organisations testify in support, in opposition, or remain silent? Will funders fund these campaigns or their opposition?
Those of us who are allies to sex workers need not sit by and wait for this change to happen. We can call out the racism and classism inherent in continuing to support criminalisation. We can fund the research, policy development, and organising necessary to develop proposals that prevent harm and serve all communities. We can move now from fence-sitting to overt solidarity, taking our fraction of the risk, and dismantling inequities to make sex workers welcome.
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