Written by Elene Lam and Judge Fudge, McMaster University
Although seemingly “we are all equal in the face of the virus”, the pandemic has starkly revealed key features of the contemporary world of work –inequalities that are highly gendered and racialized. Workers in the commercial sex sector – which includes legally-operating and licensed massage and body rub parlours, strip clubs, and escort agencies– have been hard hit by the health and economic crisis unleashed by covoid-19. Not only have they been required to stop work while having little access to emergency support, they have also experienced increased anxiety as provincial emergency orders have boosted police powers that have historically been used to target them.
Canada’s Immigration and Refugee Protection Act has criminalized human trafficking since 2002 and anti-trafficking provisions were introduced into the Criminal Code in 2005. As both an anti-trafficking protection and an anti-sex work border control measure, in 2012 the Conservative federal government barred all sex work-related businesses from accessing the temporary foreign worker programme. It also amended the Immigration and Refugee Protection Regulations to prohibit all temporary residents (including international students, refugee claimants and those under sponsorship) from working for employers offering striptease, erotic dance, escort services, or erotic massages. The government maintains that the prohibition on migrants working in sex work-related industries is to protect them from “abuse”, “exploitation”, and “human trafficking”.
In 2014, the Conservative government also enacted the Protection of Communities and Exploited Persons Act (PCEPA), which was designed to end demand for commercial sex. What was previously considered to be a “public nuisance”, prostitution, was reframed under PCEPA as “sexual exploitation”, where all sex workers are deemed to be victims. The goal of the law is to eradicate prostitution, by criminalising clients and third parties, communication in specific public places, working with others, and advertising sexual services. Sex workers and their advocates claim that this law has had a disproportionately negative impact on Indigenous, transgender, racialized and im/migrant sex workers by intensifying their isolation, increasing stigma and enhancing discriminatory police profiling and surveillance.
These immigration and criminal laws targeting sex work in general and migrant sex workers in particular make it very difficult for sex workers at the best of times. It is hard to see how a policy that makes, mostly women, migrant workers at risk of deportation simply for working in a sector that the federal government believes renders them vulnerable to exploitation actually “protects” them. Sex workers rights organizations and migrant sex workers themselves argue that such a prohibition not only violates their human rights, it also endangers their health and safety. Scholars have criticized the conflation of sex work and trafficking that figures prominently in anti-trafficking policies.
But the pandemic makes what is already a bad situation much worse. Butterfly (Asian and Migrant Sex workers support network), a grassroot organization formed by sex workers, social workers and legal and health professionals that advocates for sex workers’ rights, conducted a survey in April 2020 to assess the accessibility of government financial relief for sex workers in the Greater Toronto Area and surrounding areas. This survey, which had 106 responses, reveals that these workers have not been able to access emergency income support policies and that they have been subject to increased surveillance during the pandemic.
The survey reported that almost half of the respondents have precarious immigration status, which includes refugee claimants, people on tourist visas, those applying for sponsorship or to stay in Canada on humanitarian and compassionate grounds as well as those who are undocumented. Over 30% of the respondents are not eligible for the federal government’s emergency relief benefit (CERB) due to their precarious immigration status. Much of the work of migrant and undocumented workers is often informal and criminalized, and therefore lacks a paper trail to avoid a criminal record or negative impacts on their immigration status. These workers are frightened to claim the CERB in case information pertaining to their employment in the sex industry is shared with Canadian Border Services Agency (CBSA), which could result in their deportation. Most of the respondents fear discriminatory treatment from government institutions.
Moreover, in response to the pandemic the Ontario government has issued an emergency order permitting police and provincial offence officers, which includes municipal by-law enforcement officers, to stop individuals and ask them to identify themselves if the officer has “reasonable and probable” grounds to believe that they are breaking an emergency order. People with precarious immigration status are particularly troubled by the requirement to produce identity documents (ID) to law enforcement officers as they have good reason to fear that producing an ID may lead to negative immigration consequences. The problem with this kind of order is that it can be used to target specific sections of the population who are seen as “causing” the problem. The recent racists attacks on Asian-Canadians and Asian clearly demonstrates that Canadian are not immune from racist stereotypes. Since over 60% of Asian and migrant sex workers report that they have been harassed or abused by law enforcement officials these orders have a disproportionately negative impact on them.
So, what can be done? There are a range of short-term remedies that sex workers and their advocates have called for. The federal government could extend the CERB to workers without a SIN and provide income supports to migrants and sex workers who are not eligible or fear to apply government financial relief (by, for example, transferring financial aid in the form of cash that can be coordinated with local sex work and migrant organizations who are connected to community members). It could construct a firewall between income replacement and immigration enforcement so that immigration officials and the CBSA cannot access information about workers’ immigration status through these avenues. It could immediately provide permanent resident status to temporary residents regardless of their status as has been advocated by Migrant Rights Network. The Ontario government could repeal the emergency order that can be used to target historically disadvantaged populations.
In the medium term, advocacy groups have called upon the federal government to repeal the immigration regulations that make migrant workers in the sex industry vulnerable to deportation and repeal the existing laws that are designed to eradicate prostitution and to criminalize sex work, and, instead, embrace a harm reduction policy. Municipal government also need to stop enacting and enforcing by-laws, such as those regulating massage parlours and holistic centres, that have too long been used to target and harass marginalized communities. All levels of governments need to stop targeting sex workers, particularly those who are migrants and/or from racialized groups. Whatever your views of the sex industry, harassing sex workers is both unjust and ineffective if the goal is to prevent exploitation.
Elene Lam & Judge Fudge, “Migrant Sex Workers and the Pandemic: Magnifying Inequality and Discrimination” Canadian Law of Work Forum (June 5 2020): http://lawofwork.ca/?p=12631
E Lam and A Lepp, ‘Butterfly: Resisting the harms of anti-trafficking policies and fostering peer-based organising in Canada’, Anti- Trafficking Review,(2019) 91-107, 94www.antitraffickingreview.org
Canadian Alliance for Sex Work Law Reform (CASWLR), Safety, Dignity, Equality: Recommendations for sex work law reform in Canada, March 2017.
CASWLR, supranote 2, 7; E Lam, Behind the Rescue: How anti-trafficking investigations and policies harm migrant sex workers, Butterfly, Toronto, April 2018, 4, https://docs.wixstatic.com/ugd/5bd754_bbd71c0235c740 e3a7d444956d95236b.pdf.
R. Maynard, ‘Fighting Wrongs with Wrongs? How Canadian anti-trafficking crusades have failed sex workers, migrants, and Indigenous communities’, Atlantis: Critical Studies in Gender, Culture and Social Justice, (2015) 37: 2, 40-56; A. Lepp, ‘Canada’, in Global Alliance Against Traffic in Women, Sex Workers Organising for Change: Self-representation, community mobilisation, and working conditions, GAATW, Bangkok, (2018), 150-195; J Kaye, Responding to Human Trafficking: Dispossession, colonial violence, and resistance among Indigenous and racialized women (University of Toronto Press: Toronto, 2017).
E. Lam, How are Asian and migrant workers in Spas, holistic centres, massage parlours and sex workers are affected by COVID-19 pandemic?(2020)