Sabrina Talukder is the immigration attorney at The Exploitation Intervention Project (@eipnyc) at The Legal Aid Society. She represents non-citizen survivors of human trafficking with criminal histories in their legal proceedings, and she’ll be featured in Sunday’s episode of “This Is Life with Lisa Ling” at 10 p.m. ET/PT. The views expressed here are her own. View more opinion at CNN.
“I couldn’t fall behind on my rent, so I tried having sex for money,” Dee, an undocumented New Yorker, whispered to me when I met with her earlier this year. “My landlord knows I don’t have papers.”
I was surprised to hear the fragility and twinge of shame in Dee’s usually boisterous voice. Over the three years we’ve known one another, frailty is not something I’ve come to associate with Dee. She’s known as “Princess Pupusa” because of the glittery high heels she wears when she delivers the homemade, Central American stuffed corn cakes to struggling mothers in her neighborhood. Her open heart is a testament to her resilience and grace, especially after the unfathomable violence she’s described facing as a transgender woman from Central America.
Sabrina Talukder
Dee, who has been in the US for 10 years, lost her meager income as an off-the books cleaner at the start of the pandemic. As her rent payment loomed, she decided to try sex work on the advice of her trans friends, who noted — accurately — that options are limited for someone who is openly trans and undocumented.
Dee ended up seeing some customers in her home and did manage to pay her rent. But when a neighbor called the police, Dee was arrested and charged with prostitution — a potentially deportable offense.
Dee’s story is not unique or specific to her community. It is the American story of financial insecurity during the pandemic. And if the incoming Biden-Harris administration wants “an economy more vibrant and more powerful precisely because everybody will be cut in,” it must “build back better” with people like Dee in mind. It must address the decriminalization of sex work.
Although precise numbers are hard to pinpoint because sex workers operate in the underground, informal economy, the advocacy group SWOP Brooklyn estimates there are hundreds of thousands of sex workers in the US — at a minimum. And with this year’s rise in unemployment, advocacy workers say they’ve observed a recent surge of new sex workers in the field. Sex work has always existed in the US, and it’s here to stay.
While sex workers in the US are not a monolithic group, those who rely on this form of labor tend to include immigrants, those impacted by police brutality, people of color, and LGBTQ youth. These are all vulnerable populations the Biden-Harris administration has specifically focused on as part of their commitment to progress — and if this administration helps sex workers, they would in turn help these very communities.
The case for decriminalization
First, let’s talk definitions: “Decriminalization” simply refers to the removal of criminal penalties for the buying and selling of sexual acts. Decriminalizing sex work doesn’t mean the total absence of any kind of regulation around this labor. It also does not remove laws criminalizing exploitation or human trafficking.
And sex work is not the same thing as sex or labor trafficking. The former is done voluntarily (like Dee) while the latter occurs through force, fraud or coercion.
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Opponents of decriminalization often conflate regulating sex work with legalizing exploitation, while research shows that the opposite is true. It is well-documented that decriminalization dismantles the power dynamics in trafficking, combats financial insecurity, and protects the labor rights of those vulnerable to exploitation.
While other criminalization models do exist — for example, where the buyer and not the sex worker is criminalized — peer-reviewed studies show time and again that these models fail to improve the lives of sex workers and enable trafficking.
But I get it. You may be thinking, “We’re all struggling to get by; why should the Biden-Harris administration focus on this?” Because unlike millions of Americans surviving on unemployment benefits, sex workers are ineligible for almost all government relief programs because their work is illegal and operates in the informal economy.
This means that besides being ineligible for pandemic and unemployment benefits, sex workers have been excluded from basic worker protections like wage and hour claims, sick leave and unionization. Under federal law, places operating within legal, in-person segments of the industry (like strip clubs) have also been banned from receiving pandemic aid.
Sex workers can’t even turn to the virtual world for a stable income. Since being blacklisted from Craigslist and Backpage due to legislation meant to target sex trafficking, voluntary sex workers are now limited to online platforms like OnlyFans, which they’ve described as labor intensive, unprofitable and prone to new safety issues.
The only legal paradigm which has empirically proven to improve the financial security of sex workers is full decriminalization. In New Zealand, the decriminalization of sex work has been key to providing them financial stability and mitigating the potential for exploitation or trafficking. Sex workers are able to apply for emergency wage subsidies and unemployment benefits like all other workers. As a direct result (and in direct contrast to the US) the New Zealand Ministry of Justice said it found no incidents of increased exploitation or trafficking of its citizens since decriminalization went into effect.
Just as with the Farmworkers Act, Domestic Workers’ Bill of Rights, and the POWER Act — all programs President-elect Biden supports — decriminalizing sex work would benefit marginalized populations who are working in the shadows without effective federal protection or remedy for abusive employers. Such protections increase safety for everyone by exposing abusive actors in the workforce.
If sex work is treated as legitimate labor, workers can report workplace violations and employers to the Department of Labor just like any other employee. Currently, they can only report to criminal law enforcement, which is rarely done because of the historical violence and mistrust by the police against sex workers.
Conversely, in New Zealand, there was an increase in the reporting of coercive employers or exploitative customers after sex workers were extended basic labor rights. Sex workers have even sued their employers for sexual harassment or wage and hour violations through civil agencies and won. This has yet to happen with any other legal model.
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Most importantly, decriminalization of sex work will open up a whole new universe for undocumented sex workers who are vulnerable to being exploited once they’re in this industry because of their immigration status. They would be able to apply for T visas, a special kind of immigration relief for trafficking survivors. This is critical for the Biden-Harris administration because the Trump legacy boasts the highest rate of denials for T visas in history, coupled with an unprecedented decrease in the prosecution of traffickers.
This directly violates bipartisan congressional intent — spearheaded by Biden — to protect trafficking victims and increase the number of trafficker prosecutions. By encouraging undocumented sex workers to report to a civil rather than criminal entity, the administration could begin rebuilding trust in this broken relationship.
So, how do we actually do this?
In the short term, the administration should be guided by the lived experiences of people like Dee. Sex workers should be working in their own communities as part of the Biden-Harris Public Health Jobs Corps, tapped as advisers regarding cyber exploitation, and treated as authorities on the proposed LGBTQ Essential Data Act.
In the long term, the Biden-Harris administration should implement a national task force focused on gathering quantitative and qualitative data on sex work in the US and the impact of decriminalization. The task force must include sex workers with diverse experiences to best reflect the intersectional world of this industry. Ultimately, the task force should create an effective legislative strategy on formally decriminalizing sex work in the US within the first four years of the administration.
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And this wouldn’t be as polarizing as one might think. Four states — Maine, New York, Vermont and Massachusetts — along with Washington, DC, have already proposed decriminalization legislation. There are similarly supportive bills in the House of Representatives. Voters in Lyons County, Nevada rejected a recent attempt to repeal legalized sex work by a 3-1 margin. Multiple organizations and leaders openly support it, including the ACLU, Center for Constitutional Rights, UNAIDS, and — notably — Vice President-elect Harris.
These trends highlight society’s steady acceptance that sex work is how a lot of Americans put food on the table, and they should not be criminalized for it.
I humbly nominate Dee for the national task force. Now more than ever, we need “Princess Pupusas” who are generous with their story and spirit when the world has rejected them. While so many like Dee are forced to survive in the shadows, we can be guided by her grace and struggle as we battle for the soul of this nation and build back a better America for everyone.
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