In the United States SEXHUM focused on the realities of New York City and Los Angeles. The States are the most criminalized context of the SEXHUM project as all forms of sex work and all parties involved are criminalized (except in some small counties in Nevada).
In the US, the complex relationship between migration, sex work and trafficking is framed by a carceral regime that became increasingly repressive during the Trump administration. In this context, sex work was targeted specifically through sexual humanitarian interventions aiming to stop all sex work through criminal law.
The criminalization of online sex work was intensified in 2018 with the bipartisan passage of SESTA/FOSTA in Congress ‘anti-trafficking’ legislations, respectively, which pushed sex workers offline and exposed them to increased precariousness and vulnerability to abuse, including by law enforcement, by making websites liable for third party advertisements for sexual services on their platforms.
The context of the US is characterised by sexual humanitarian dynamics whereby the arrest of sex workers and victims of trafficking becomes part of their referral to social services and court supervision. This process encompasses the establishment in 2013 of Human Trafficking Intervention Courts (HTICs) in NYC which offer people (mostly cis women) charged with prostitution the possibility of having their charges dismissed or sealed provided they complete mandatory service sessions and they do not get re-arrested within 6 months.
Our findings confirm that the long court processes and social service sessions do not match the economic needs and priorities of sex workers and that the (sexual) humanitarian ethos of HTICs is structurally embedded in the enforcement of criminalizing anti-prostitution laws. Although HTICs do not exist in LA, there are similar Law Enforcement Assisted Diversion (LEAD) programs, which are overseen by the LA County Sheriff’s Department Human Trafficking Bureau. In LA too, sexual humanitarian understandings of victimhood centred on the experiences of cis women tend to exclude trans people from being recognised as victims of trafficking and from the associated forms of humanitarian protection.
SEXHUM findings also show that the limited forms of sexual humanitarian control, protection and support provided by HTICs and LEAD programmes were eroded by the anti-migration measures introduced by the Trump administration. In 2017, we witnessed the intrusion of ICE officers inside the buildings of the Queens County Criminal Justice Court, where many undocumented migrant sex workers and victims of trafficking were defending their cases. In this context of ‘extreme bordering’ (Mai et al. 2021) we focused on the migrant trans Latina population as they are specifically affected by carceral sexual humanitarian interventions while also being neglected by the protective services offered to victims of trafficking (Fehrenbacher et al 2020; Hoefinger et al 2020). Sex workers and trafficked persons in the sample included 30 transgender, 25 cisgender, and 3 non-binary/gender-non-conforming people between the ages of 19 and 70. Participants hailed from 16 countries of origin, including 21 participants who were born in the US and 37 migrants born outside of the US from Latin America, the Caribbean, Africa, or Asia. The largest number of migrants in the sample were from Latin America.
Our data in NY and LA show that a large number of trans Latina sex workers were arrested by anti-prostitution law enforcement as they were assumed to be sex workers for being out in the street: simply for ‘walking while trans’. Many participants were detained by immigration, in prisons and jails where they were misgendered and ridiculed for speaking Spanish and discriminated against in relation to both their race and gender identity. Some of them experienced sexual assault, torture-like treatments, and were denied hormonal therapies.
At the same time, some initiatives seem to respond well to the priorities and needs of migrant sex workers. Health-related initiatives such as the Community Health Network in New York take a de-stigmatizing approach to sex work and focus on harm reduction and prevention, with particular reference to trans Latina women. Community-based projects that provide direct services for legal assistance, such as Legal Aid Society and the Sex Work Project at the Urban Justice Centre in NY also support the priorities and needs of migrant sex workers by helping migrants secure asylum, T-Visas, and U-Visas. Community-focused legal groups such as the SOAR Institute support well trafficking survivors by trying to expand Vacaturs Law allowing them to clear their criminal records, reduce stigma and secure employment and housing.
Finally, community-based peer support, such as the TransLatina Coalition and SWOP-LA in Los Angeles and the TRANSgrediendo Collective, Lysistrata, Red Canary and GLITS in New York provide a key safety net and act as buffers against the onslaught of repressive legislation and general deteriorating conditions for sex workers in the US in times of ‘extreme bordering’.
These peer-support groups played a key role in supporting the most precarious members of their communities during the COVID-19 pandemic, which was key to their survival as many of our trans research participants explained that they resorted to sex work because they were excluded from mainstream legal forms of employment for being trans.
The experiences of our respondents show the negative economic and health consequences caused by the ‘extreme bordering’ of sexual humanitarian, anti-trafficking interventions and by the criminalization of sex work. They also strongly suggest the need for sexual humanitarian and anti-prostitution law enforcement interventions to be defunded and for peer-based health, legal and community initiatives to receive broader public support and funding instead (Hoefinger et al. 2020).
US-specific SEXHUM publications and other SEXHUM publications referenced:
1) Hoefinger, H., Musto, J., Macioti, PG, Fehrenbacher, A.E., Mai, N., Bennachie, C. and Giametta, C. (2020) ‘Community-Based Responses to Negative Health Impacts of Sexual Humanitarian Anti-Trafficking Policies and the Criminalization of Sex Work and Migration in the US’, Social Sciences 9(1):1.
Available online (Open Access):https://www.mdpi.com/2076-0760/9/1/1
2) Fehrenbacher, A., Musto, J., Hoefinger, H., Mai, N., Macioti, PG, Giametta, C. and Bennachie, C. (2020) ‘Transgender People and Human Trafficking: Intersectional Exclusion of Transgender Migrants and People of Color from Anti-trafficking Protection in the United States’, Journal of Human Trafficking 6:2, 182-194, DOI: 10.1080/23322705.2020.1690116
3) Musto, J., Fehrenbacher, A., Heidi, H., Mai, N., Macioti, PG, Bennachie, C., and Giametta, C. (2021) ‘Anti-Trafficking in the Time of FOSTA/SESTA: Networked Moral Gentrification and Sexual Humanitarian Creep’, Social Sciences, forthcoming.
US-specific policy making suggestions:
Decriminalisation, Discrimination and Labour Rights
- All U.S. states and territories should legally reframe the sex industry by:
- fully decriminalizing sex work
- allowing sex workers to access state employment and labour laws and contracts,
- eliminating all criminal laws relating to the sale and purchase of sexual services, inclusive of all sectors of consensual sex work, of third parties and of all migrant workers, regardless of their visa status,
- allowing sex work to take place in people’s private homes; in existing massage parlours; and in hotels, motels, and short-term rental properties,
- expunging all prostitution-related criminal offenses from the records of people in sex trades both at state and federal level.
- In housing, employment healthcare and financial and insurance services, anti-discrimination clauses should be put in place to prevent prior or current records from being used to deny equal treatment.
- Laws banning loitering for the purposes of prostitution, AKA “Walking While Trans Ban,” should be struck down, as well as the use of condoms as evidence of prostitution.
- The FOSTA-SESTA Act (Public Law No: 115-164), which amends the Communications Act of 1934, to hold print publications and internet platforms liable for any content on their website that may facilitate sex trafficking, should be repealed because its passage has increased the vulnerability of sex workers to harm and discrimination.
- Work visa access for all migrants should be improved, especially in domestic work and agricultural sectors, increasing their work opportunities in the United States without having these depending on the sponsorship of one employer or partner.
- New policies should be introduced fighting specific forms of discrimination targeting sex workers in relation to their access to mainstream forms of labour, banking and insurance services, temporary (hotels) and permanent housing (currently hampered by laws on procuring) and parenthood rights.
- All local, state, and Federal law enforcement agencies, including Immigration and Customs Enforcement, should be held accountable and externally reviewed on an ongoing basis for their conduct in investigations involving people suspected of trading sex for resources.
- Complaints reported by sex workers to law enforcement should be met with the same respect that would be given to any other crime victim and investigated without penalty to victims.
- Separation between criminal proceedings and immigration enforcement must be maintained in order to enhance sex workers’ trust in law enforcement and access to justice.
- Funding should be redirected from vice units and the policing of sex work towards social services for people in sex trades, including housing, employment, education, financial management, counselling, confidential testing and health services, which should be made available to all people in sex trades without arrest or involvement in the criminal justice system.
Trafficking and Anti-Trafficking
- Labour exploitation in the sex industry, including trafficking and forced labour, need to be addressed by more detailed and comprehensive labour rights legislation and more accessible and lower threshold support and compensation mechanisms.
- Immigration and sex work law enforcement compliance controls should not be carried out in the name of finding presumed victims of trafficking or exploitation.
- The identification of victims of trafficking should not take place by an interview with law enforcement, but by a more collaborative approach including non-state actors and peer and in-language support groups.
- Trafficking victims should not be arrested or held in detention. Instead, they should be directly referred to safe housing, service providers, and attorneys who can assist them.
- Trafficking victims should not be compelled to cooperate with law enforcement.
- Trafficking victims should not have to collaborate in the arrest of a trafficker, in order to receive support, protection or T-visa status to remain in the country.
- Trafficking victims should be offered shelter, trauma-informed healthcare, including mental health and voluntary placement in substance abuse treatment, and sustainable economic support in the form of job training and successful job placement, or paid apprenticeship.
- Language interpretation services need to be made available during arrest and court process for investigations involving suspected sex trafficking that may negatively impact migrants involved in sex trades.
Specific Policymaking recommendations for Decriminalization in New York State:
- Passing the ‘Stop Violence in Sex Trades Act’ (S06419 / A08230)
- Repealing the ‘Walking While Trans’ Law (S2253 / A654)
- Expanding criminal record relief for trafficking survivors (S04981/A0698)
Specific Policymaking recommendations for Decriminalization in California
- Repeal the California penal code (PEN) sections directly criminalizing sex work, and vacate all convictions based on those sections.
- Repeal PEN section 647(B) prostitution and solicitation, PEN section 653.23 supervising or aiding a prostitute, PEN sections 266h and 266i pimping and pandering, and PEN section 653.22 loitering to commit prostitution.
- Revise PEN sections 372, 373a, and 647(A) – relating to criminal nuisance liability and lewd conduct, such that criminal liability cannot attach under those statutes merely due to someone’s participation in the sex trade as it has historically been practiced.
- Vacate all criminal records and convictions based on the repealed and amended statutes at both state and federal levels.