B.

CARROLL

I N TE RS E C TIO N A LITY
WOMEN, THE SEX INDUS TRY AND THE LAW
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INTERSECTIONALITY

INTRODUCTION

This paper shall explore intersectional discrimination of women who work in the

employment field of prostitution (sex work). The social and legal disadvantages and

discrimination that sex workers in Australia experience are significantly complex. The

regulation and legislation of the sex worker industry in Australia is inconsistent and best

described as confusing. 1 In Australia the legal frameworks under which sex workers operate

are criminalisation, complete and partial decriminalisation and licensing legislation. There

are two main approaches in Australian prostitution legislation, one view is of the sex worker

industry as one of being in need to ‘socially control’ and the other is a ‘pure licensing’

approach. The ‘social control’ legislated approach holds attitudes that reflect a negative

moral stance on sex work that is held by hegemonic dominant ideologies. In contrast the

‘pure licensing’ legislated approach considers the sex worker industry as a field of legitimate

commercial activity and licensed similarly to other areas of business.2

Intersectional discrimination is where a person is subjected to layers of discrimination

that are based on different aspects of their identity.3 Intersectional discrimination has been

put forth thusly as the ‘theory of intersectionality seeks to capture the multidimensional,

interconnected and contingent nature of individual women’s identity. The experience of

1 Scarlet Alliance, nd, ‘State by State Laws in Australia’, viewed 27th August 2010, Available
http://www.scarletalliance.org.au/laws/
2 T. Croft & T. Summerfield, 2007, ‘The Licensing of Sex Work: Regulating an Industry or Enforcing

Public Morality’, University of Western Australia Law Review, vol. 33, no. 2, November, pp. 295-296.
3 A. Dasvarma & E. Loh, 2002, ‘Intersectional Discrimination’, HEREOC Beyond Tolerance:

National Conference on Racism, 12-13 March, Sydney,

hhh.http://www.hereoc.gov.au/racial_discrimination/beyind_tolerance/speeches/dasvarma.html, p.
1
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oppression is not singular or fixed but derives from the relationship with the interlocking

systems of power’.4 Women who work in the sex industry are certainly underneath the

system of power that radiates from the dominocentric grouping in Australia. Women who

work in the sex industry in Australia are of diverse cultural backgrounds, sexuality and

ethnicity, but in common sex workers are often viewed as an ‘other’ by dominocentric

groupings and sex workers do not have in all jurisdictions the benefits of legal recourse to

the violence, and discrimination they are subjected to through the course of their

employment.

Intersectional discrimination occurs through the creation of deviant categories that are

influenced by the dominant groups in society ideologies. A functionalist analysis of deviance

originates with society as a whole, that the source of deviance is in the nature of society and

also deviance is integral to maintain society functioning cohesively.5 Shared norms and

values are the basis for social order, and it is this order created by shared values that are the

basis of society’s laws and regulations. It is suggested that sex workers will exist whether or

not it is non-criminalised. In support of this fact it is argued that if sex work is legalised and

regulated those working in the field will benefit better from legal protection.6 However,

according to Durkheim7 a collective conscience made through the moral bond found in

society leaves little room for individual dissent and or deviance. In the employment field of

4 P. Eastel, 2001‚ ‘Intersectionality – Greater Than the Sum of the Parts’, Ch 10 in Less Than Equal –
Women and the Australian Legal System, Butterworths, NSW, p. 181
5 M. Haralambos, R. van Krieken, P. Smith & M. Holborn, 1996, Sociology Themes and Perspectives

Australian Edition, Addison Wesley Longman, Melbourne, p. 530

6 J. Shearmur, 2008, ‘The Real Body Shop, Part 2: Spare Parts’, Policy, vol. 24, no. 1, Autumn, pp. 25-

29
7 Emile Durkheim, cited in Charles Lemert, 2007, ‘Ch 7 The Reasonable Hope of A social Bond’, in

Thinking the Unthinkable: The Riddles of Classical Social Theories, Paradigm, Boulder, p. 81
 4

sex work this premise underpins the historical patriarchal moralistic basis of legislation that

continues to punish the minority group of sex workers in Australia.

The categorization of laws that regulate the sale and purchase of sex are laws that punish

sex workers for selling sex, laws that punish the individuals involved in the organisation and

management of sex work and whilst very infrequent, laws which punish individuals who

purchase sex.8 Sex work is prohibited and a criminal offences in South Australia under the

Summary Offences Act (1953). Soliciting for sex, procurement for prostitution and living

on the earnings of prostitution are all found under part five (5) ‘Offences against Decency

and Morality’. This overwhelmingly demonstrates that the sex worker in South Australia is

still outside of the dominocentric system of power and is discriminated against within the

legislation of South Australia. By comparison, legislation in Victoria states ‘the main

purpose of this Act is to seek to control prostitution in Victoria’,9 and in the A.C.T the long

title of the Prostitution Act (1992) states it is ‘an Act to regulate certain aspects of

prostitution’.

In states and territories where sex work is not criminalised there is still societal

stigmatization of sex workers. Research has shown that a vast majority of sex workers in

Victoria do not work under licenses and the legal protection framework that is built in that
10
state. There is evidence that states that prostitutes are characterised as deviant minority

groups because they do not conform to the idealised image of women as passive,

8 S. Pinto, A. Scandia & P. Wilson, 1990, ‘Prostitution Laws in Australia’, Australian Institute of
Criminology, Trends and Issues in Crime & Criminal Justice, no. 22, Available
http://www.aic.gov.au/publications/tandi/ti22.pdf
9 Prostitution Control Act (1994) Vic
10 K. Murray, 2003, ‘Labour Regulations in the Legal Sex Industry in Victoria’, Australian Journal of

Labour Law, vol. 16, no. 3, Available

http://www.lexisnexis.com.ezproxy.flinders.edu.au/legal/delivery/Articles/LabourRegulation_in_th
e_Legal_Sex_Industry_In_Victoria
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monogamous and faithful.11 This indicates that even where sex workers can operate legally,

it is still perceived socially as a deviant behaviour which severely places the workers in

experiencing an intersection of discrimination, through their experience of employment and

gender. This would be further complicated and compounded where sex workers are also of

an ‘other’ category relating to identity aspects such as sexuality, ethnicity and citizenship

status.12 Sex workers are still isolated outside the protected labour workers union without

standardised employment regulations.13 Research by Murray14 documented that in Victoria

there was a brief attempt to organise workers protection through unionisation, but the

industry was unable to gain momentum. This was due partly to the fear of deviant labelling

that is placed on sex workers in the industry and the reluctance by established union

organisations to be known to associate with the sex industries deviant label. Still struggling

to ensure basic equality in established minimum standards in the sex industry wages the

Australian Sex Workers Association is developing the Sex Workers Union.15

There are serious implications regarding intersectional discrimination that can be drawn

from recently introduced reforms that are contained in the Brothels Legislation Amendment

Act 2007 (NSW). Evidence of this is reported by Croft16 where the amendment have been

implemented into law on the ‘philosophy of brothels as inherently unlawful and disorderly’,

though legislated under a guise of reforming amenity impacts of unauthorised brothels.

Further intersectional discrimination has been created by this amended legislation where by

11 Ibíd.
12 A. Dasvarma & E. Loh, op.cit.
13 Murray, 2003, op. cit.
14 Ibid.
15 The Scarlet Alliance, ‘The Sex Workers Union’, Available

http://www.sexworkersunion.org/home.php,
16 P. Crofts, 2007, ‘Sex in the Dark: The Brothels Legislation Amendment Act 2007 (NSW)’, Current

Issues in Criminal Justice, vol. 19, no. 2, November, pp. 183-196, p. 186
 6

local councils in New South Wales have been given exceptional powers which can lead to

homelessness for the already marginalised individuals that work in the sex industry.

Furthermore this legislation does not encourage or render assistance to unauthorised

brothels to operate lawfully.17

Sex work is a highly stratified occupation and studies have shown that the main reason

males or females enter the sex industry are financial, as it pays a higher amount than many

other jobs.18 When combining factors of economic deprivation and the objectification of

women in society it is difficult to agree that people enter the sex worker industry as an

autonomous decision.19 As an Australian representative of the Coalition against Trafficking

Women, Caroline Norma20 highlights that the United Nations Optional Protocol to the

Convention on the Elimination of Discrimination against Women does not permit

trafficking, even with the consent of the woman involved, and that it ‘specifically proscribes

the abuse of power or of a position of vulnerability to achieve the consent of a person

having control over another person, for the purpose of exploitation’. Norma21 continues

stating that the United Nations protocol definitions are very clear in relation to exploitation

and that the entire business of the sex industry is effectively outlawed. Because whether or

not a person has entered the sex industry of their own accord it involves the subjectification

of the person through the course of their work under power structures of Australia’s

patriarchal society.

17 P. Crofts, 2007, ibid., pp. 192-193

18 S. L. Roach Anleu, 1999, ‘Ch 4, Criminalisation and decriminalisation’, in Deviance Conformity and
Social Control, 3rd Edition, Addison Wesley Longman, Melbourne, p. 91
19 S. L. Roach Anleu, ibid., p. 92
20 C. Norma, 2007, ‘The sex industry is this war’s ground zero’ Frontline, vol. 15, September, p. 7
21 C. Norma, 2007, ibid.
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The two main feminist arguments that are decried regarding the sex worker industry are

that of the sex work being an offensive employment for women and a fundamental violation

of women’s rights to equality, and the contrasting argument that where laws are criminalising

sex workers only further enhances a dominant masculine power over women by denying

basic rights of choice of work.22 This is a difficult juxtaposition to consider for legislators,

yet ensuring that each individual has opportunity to make individual choices of lifestyle

(which does not cause harm to others), should not be delayed or hindered because of

barriers made by societies idealistic norms of women.

‘Whilst we are waiting for a non-patriarchal society, it is essential for feminists to

respond to abusers within prostitution, just as they respond to abuse within intimate

relationships or as they respond to abuses such as sexual harassment in the workplace.

Feminists should seek to bring perpetrators of specific incidents of abuse to justice. Men

who rape or assault sex workers should be charged with rape or assault, whether they are

clients, pimps or indeed corrupt police. To achieve this, legislation and policy must not

only recognise prostitutes rights to report assault bust must also offer encouragement

and protection to those who wish to do so’.23

Elaine Dowd’s statement above unmistakably highlights that the failing to protect legal

sex workers basic rights through an established legal framework is unreasonable. This failing

which is occurring under legally sanctioned employment is complex and moves further afield

to social realms where actions and inactions by policing and legislative institutions occurs

22 E. Dowd, 2002, ‘Sex Worker’s Rights, Human Rights: The impact of Western Australian
Legislation on Street Based Sex Worker’s’, Outskirts: feminism along the edge, vol. 10, September,
Available http://www.chloe.uwa.edu.au/outskirts/archive/volume10/dowd.
23 E. Dowd, 2002, ibid.
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that are detrimental to equality for workers in the sex industry. The inconsistencies in

Australian legislation regarding workers in the sex work industry continue to encourage

feminist theory that regard women to be subjected to degradation within the legal sex work

industry and multidimensional discrimination persists. The inconsistencies found within

legislation across Australian states and territories are a reproduction of the broader

Australian society’s differing responses to how women should and can attain equality, the

trajectory for equality is multidimensional.

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REFERENCE LIST

Australian Institute of Criminology 1990, ‘Prostitution Laws in Australia’, Trends & Issues
in Crime & Criminal Justice, no. 22, Available:
http://www.aic.gov.au/publications/tandi/ti22.pdf

Crofts, P 2007, ‘Sex in the Dark: The Brothels Legislation Amendment Act 2007
(NSW)’, Current Issues in Criminal Justice, vol. 19, no. 2, November, pp. 183-196.

Crofts, T & Summerfield, T 2007, ‘The Licensing of Sex Work: Regulating an Industry
or Enforcing Public Morality?’, University of Western Australia Law Review, vol. 33,
no. 2, November, pp. 289-306

Dasvarma A. & Loh E., 2002, ‘Intersectional Discrimination’, HEREOC Beyond

Tolerance: National Conference on Racism, 12-13 March, Sydney,
hhh.http://www.hereoc.gov.au/racial_discrimination/beyind_tolerance/speeches
/dasvarma.html

Dowd E., 2002, ‘Sex Worker’s Rights, Human Rights: The impact of Western Australian
Legislation on Street Based Sex Worker’s’, Outskirts: feminism along the edge,
vol. 10, September, Available
http://www.chloe.uwa.edu.au/outskirts/archive/volume10/dowd.
Eastel P., 2001‚ ‘Intersectionality – Greater Than the Sum of the Parts’, Ch 10 in Less
Than Equal – Women and the Australian Legal System, Butterworths, NSW
Haralambos M., van Krieken R., P. Smith P. & Holborn M., 1996, Sociology Themes and
Perspectives Australian Edition, Addison Wesley Longman, Melbourne
Lemert C., 2007, Thinking the Unthinkable: The Riddles of Classical Social Theories, Paradigm,
Boulder
Murray K., 2003, ‘Labour Regulations in the Legal Sex Industry in Victoria’, Australian
Journal of Labour Law, vol. 16, no. 3, Available
http://www.lexisnexis.com.ezproxy.flinders.edu.au/legal/delivery/Articles/Labo
urRegulation_in_the_Legal_Sex_Industry_In_Victoria
Norma C., 2007, ‘The sex industry is this war’s ground zero’ Frontline, vol. 15,
September, p. 7
 10

Pinto S., Scandia A. & P. Wilson P., 1990, ‘Prostitution Laws in Australia’, Australian
Institute of Criminology, Trends and Issues in Crime & Criminal Justice, no. 22,
Available http://www.aic.gov.au/publications/tandi/ti22.pdf
Roach Anleu S. L., 1999, ‘Ch 4, Criminalisation and decriminalisation’, in Deviance
Conformity and Social Control, 3rd Edition, Addison Wesley Longman, Melbourne
Shearmur J., 2008, ‘The Real Body Shop, Part 2: Spare Parts’, Policy, vol. 24, no. 1,
Autumn, pp. 25-29
The Scarlet Alliance, nd, ‘State by State Laws in Australia’, viewed 27th August 2010,
Available http://www.scarletalliance.org.au/laws/
The Scarlet Alliance, ‘The Sex Workers Union’, Available
http://www.sexworkersunion.org/home.php,

Prostitution Act (1992) A.C.T

Prostitution Control Act (1994) VIC
Summary Offences Act (1953) S.A