A lawsuit challenging California's laws against prostitution just got a much-needed boost. The Southern California chapter of the American Civil Liberties Union, together with a raft of other organizations committed to gender equality, has filed an amicus brief in support of the lawsuit, or rather its appeal of a district court's ruling against the original suit. This could mean it will be harder for the U.S. Ninth Circuit Court, where the case now sits, to dismiss the lawsuit's arguments out of hand.
The ACLU brief supports the lawsuit's contention that California's penal code violates fundamental constitutional rights to sexual privacy and is enforced in a discriminatory manner. As I noted in Getting Screwed: Sex Workers and the Law, the original lawsuit, filed in March 2015, argued that laws making consensual commercial sexual activity between adults illegal were unconstitutional because they infringe on privacy rights protected by the 14th Amendment. As the ACLU brief points out, the Supreme Court, in its 2003 Lawrence v. Texas ruling, recognized that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." The 2003 ruling held that a Texas law classifying consensual adult homosexual intercourse as illegal sodomy violated the privacy and liberty rights to engage in private intimate conduct. The California lawsuit argues the same could be applied to consensual commercial sex.
The ACLU brief also argues that the California penal code is unconstitutional because the way it is enforced is discriminatory. Certain groups, such as transgender women, LGBT youth, and female sex workers are targeted and arrested for prostitution in disproportionately higher numbers than other people. For instance, female sex workers are arrested in far greater numbers than the male clients they serve. As I show in my book, this has long been the reality. Yet such blatant discrimination remains prevalent. Of those arrested for prostitution nationwide in 2014, 66 percent were women and only 34 percent were men, according to an FBI report cited by the ACLU brief.
In addition, LGBT youth, many of whom are homeless and selling sex for survival, are also targeted for arrest in greater numbers than other youth. One of the studies cited by the ACLU brief found that lesbian or bisexual youth are twice as likely as their heterosexual peers to be in detention for prostitution.
Similarly, transgender women are routinely profiled as sex workers and stopped and searched while doing nothing illegal. And transgender individuals who do engage in sex work are far more likely to be arrested than other sex workers. This kind of discriminatory targeting exposes transgender women to high rates of police violence, according to the ACLU brief.
Indeed, the ACLU brief concludes, as I did in my book, that the criminalization of sex work exposes not only sex workers but all women to more violence. By contrast, decriminalization has been shown to reduce violence and discrimination against sex workers.
The original lawsuit challenging California penal code 647(b) was filed in March 2015 by the Erotic Services Providers Legal Education Research Project, a San Francisco labor rights organization for sex workers. It was dismissed by a judge in the Northern California District court, but ESPLERP appealed the ruling last month.
Now that the ACLU has jumped into the fray, all eyes are on the United States Court of Appeal, Ninth Circuit, to see what happens next.