Sex workers are on the periphery of social and economic life in many countries. Increasingly, even governments look down upon sex workers as subjects unworthy of benefits or legal protection. There are 3 million commercial sex workers in India alone, of whom an estimated 40% are children, according to a study conducted by the Indian Ministry of Women and Child Development. There have been no further official statistics released on this section of population since, and both acceptance and acknowledgement are a distant prospect in developing countries.

Some jurisdictions have decriminalised prostitution-related activities, including New Zealand, parts of Australia, Germany, Netherlands, and parts of the USA. Yet although India has legalised sex work, issues remain.

How far can we go in legalising sex work?

The limited scope of sex education in schools makes clear that sex is considered a taboo in countries like India. And, in a social and cultural context that makes sex a taboo, legalising sex work is almost blasphemous. That taboo thrives on lingering homophobia and transphobia. For instance, Section 377, which decriminalised homosexuality in India, has still not been fully enacted. Despite India’s rich historical legacy of emancipation and female empowerment, extending as far back as ancient and medieval Buddhist literature that celebrated prostitutes who rose up to be monks (Amrapali), the inherent notion underlying sex work inspires widespread disgust and abhorrence.

The legalisation of sex work itself remains a conundrum. For example, one option for legalised sex work could make use of urban zoning centres where prostitution is permitted (although this strategy reported bleak results in Britain). Alternatively, sex workers could be licensed, but this could promote discrimination and bias on the basis of identity (e.g., caste) and infringe on the sex workers’ privacy.

Legalisation is therefore contentious. But legalisation’s only alternative may be exploitation.

How do international laws restrict legalisation of sex work?

International laws and conventions such as the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) endanger sex workers. Article 6 of the CEDAW requires states to take “all appropriate measures to suppress all forms of traffic in women and exploitation of prostitution of women.” Such measures threaten counterproductive laws to suppress trafficking that could seriously harm sex workers.

Furthermore, international aid programmes such as the US Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act condition funding on a pledge of opposition to prostitution. This conditioning restrains the ability of aid recipients to chart their own courses of legalisation.

Is the grass really greener on the other side of legalisation?

In the face of growing support for the legalisation of sex work, critics worry about ignorance of legalisation’s true consequences. Studies show that most female sex workers enter into prostitution out of necessity, not personal choice. We might wonder whether continued criminalisation that keep workers trapped is justifiable, when we could instead focus on helping sex workers escape prostitution. Licensing or some other certification of sex work that adds to their résumé would be conventionally considered a possible blot on their record.

A second concern focuses on the risk that legalisation might increase human trafficking. Greater legitimacy for sex work could lead fuel that sector’s economy, yet sex workers would likely not benefit from such growth. Most sex trafficking networks operate in a shadow economy, and the profits are concentrated beyond the sex workers’ reach. We should be mindful that legalisation alone would not in itself transfer profit to lower reaches.

Lastly, sex work is still a fairly unorganised sector with many women operating from their homes. Legalisation would push many workers outdoors, and further stigma would soon follow. Some neighbours may forbid sex workers from living nearby. Those sex workers too reticent to come forward would also be excluded from the protections of labour law under a legalisation scheme.

It is important to listen to voices coming from within this community, in the form of unions like Organización de Trabajadoras Sexuales (OTRAS) from Spain or the DecrimNow campaign in Britain. Sex work legalisation is more than mere legal debate and affects sex worker health. At this time, legalisation perhaps requires the emergence of a consensus in the community more than a governmental diktat.

Note:  This article gives the views of the authors, and not the position of the Social Policy Blog, nor of the London School of Economics.