Is sex work a possible legal profession? In New York State, it soon could be.

Chocolate frosting coats the circular cake until there’s nothing left. Little, decorative brown dots spot the top to try to make it look fancy, but everyone knows it was handmade. A sloppily written “Happy Birthday” is on the top, along with candles burning down quickly. You know you have to blow them out before the wax touches the cake.

It’s the first birthday cake you’ve ever had in your life, and it was given to you by your pimp.

Sex work is work. It’s a popular expression in the media as a long-running debate rages between two ways of approaching it: decriminalizing sex work and criminalizing the act of buying sex. Within this there are two sides – those who have taken control of their bodies because they’re trans or want to participate in sex work, and those who have been trafficked and put into sex work against their will.

Those who are victims of trafficking are against the legalization or decriminalization of sex work because they’ve been exploited and think it will lead to the exploitation of others. Those who are trans or work in the prostitution trade view it as a profession, and want the risk removed through decriminalization. As of 2022, New York State is deciding on two separate bills that will either decriminalize sex work or criminalize the act of buying sex, leaving the worker at no legal risk.

Nordic Model versus full decriminalization

A car drives down a dimly lit street, approaching the corner where a lone woman stands. Her heels are almost as high as her skirt is short, and she’s waiting for the car to stop. She bends down as the vehicle slows to a halt and the window lowers, asking the man inside what he wants. She hurries into the car because selling sex is still illegal – but not for long – and that’s either through implementing the “Nordic Model” or full decriminalization.

One group in New York advocating for the Nordic Model, which criminalizes the purchase of sex but not the seller, is Covenant House, a New York-based organization that works with survivors of human trafficking.

“The sex buyer really can't tell most of the time whether someone is trafficked or whether someone is consenting,” said Jayne Bigelsen, vice president of advocacy at Covenant House.

Covenant House positions itself on the side of keeping prostitution illegal, arguing that decriminalizing the entire transaction would create a larger market for sex workers, thus bringing more people into the trade against their will.

“If prostitution were decriminalized, then the pimps could set up a recruitment center outside our doors,” said Bigelsen about Covenant House, which helps homeless, at-risk, and trafficked youth find a home.

However, the ACLU argues that criminalization makes those in the sex trade more vulnerable and at-risk than they should be on the job, especially populations like trans women and immigrants, who are already at risk.

“Trans women of color feel the impact of criminalization the most, whether or not we are sex workers,” LaLa B Holston-Zannell, a trans rights activist, said in a 2014 piece by the ACLU. “Police profile us and often press prostitution charges based on clothing or condoms found in a purse. We can’t go about our lives without fear of being targeted by police.”

She continued: “If sex work is decriminalized, police would have one less tool to harass and marginalize trans women of color.”

The Nordic Model increases the risk of violence and threatens the safety of sex workers, according to a report by the ACLU.

“The continued criminalization of buyers under these policies puts sex workers at risk — both in terms of safety and financial security — and exacerbates the problem of mass incarceration in the U.S.,” the report found. 

Human trafficking is an essential section in the ACLU report. However, the report concludes that no studies have proven that human trafficking worsens with the decriminalization of prostitution. That includes reports in Europe, where several different models of legalization and decriminalization exist. 

“Research in Norway and Sweden links harsher legislation that regulates and criminalizes sex work with reducing trafficking,” the report said.

In a what year letter from 250 scientists to President Biden, there was a consensus that the head of state should agree with organizations like the ACLU in its policy and support decriminalization.

“We are hopeful that this new administration will consider the wealth of empirical data that unequivocally shows that the criminalization of the consensual exchange of adult sexual services causes severe harms, the burden of which falls mainly on women, people of color, transgender and non-binary workers, people with disabilities, economically marginalized workers and community members, and does not prevent or minimize human trafficking. Attribution hereIn fact, the criminalization of sex work increases risk and makes it impossible for those who experience victimization and violence to safely come forward to seek meaningful help from law enforcement or other agencies,” the letter read.

Decriminalization is a position that social commentarian John Oliver agrees with. He recently ran a 25-minute segment on his show about the issue.

“Everything about the way we regulate sex work in this country is confusing and counterproductive,” he said. “And when we talk about it, it’s either demonizing, patronizing or just plain wrong.”

Oliver talked about how Americans should remove human trafficking from the sex work dialogue during his monologue. However, that’s something Bigelsen and the kids at Covenant House argue isn’t possible.

In response to the segment, the youth at Covenant House made a video about their experiences with sex work and the issue.

“Part of our problem is we're dying on social media,” Bigelsen told The Click. “When we're up against the sound bite, ‘sex work is work,’ we lose, but when we actually take the time to explain, or someone is willing to listen to our explanations, people do agree that it's problematic.”

But many people are not swayed by logic – as we’ve learned from the last several years of politics – they’re swayed by a good slogan that they can chant. Think “Make America Great Again” and the like. Marketing sells – and so does sex.

“What really bothers me is that people think it's the woke and progressive thing to do,” she said. “So, whoever decided that it's progressive to say sex work is work, you got to have to add the racial element. It's usually rich white men, buying poor female-identified young people of color.”

Decriminalization, not legalization?

The idea of a Red Light District is that of free sex and uninhibited adults – but that’s not how sex work is when it’s legal. It’s not like the few houses in Nevada, where sex work is legal, where the workers pay dues, and alleged abuse runs rampant. In reality, it can be pretty idyllic. 

One place that has decriminalized sex work is New Zealand, hailed by advocates as the gold standard for sex work, rather than Amsterdam’s more famous Red Light District.

“Since New Zealand’s passage of decriminalization, the government has found no increase in the size of the industry.attribution In a nationwide study, 90 percent of people trading sex reported decriminalization gave them employment, legal, and health rights, while 64 percent found it easier to refuse clients. Since Australia’s New South Wales decriminalization, the government has “no evidence of recent trafficking of female sex workers. . . in marked contrast to the 1990s” when sex work was criminalized,” reads the 2020 Data for Progress Report on Polling on the Decriminalization of Sex Work.

The same report stated: “People trade sex for many reasons, but most often to meet basic needs, and until this economy affords everyone a home, a living wage job, healthcare, and education, many people will continue to trade sex for survival…Decriminalizing sex work is only the first step toward rights and safety for all people in the sex trade. Still, it is also the only legal model that immediately reduces the harms of policing, incarceration, deportation, and criminal records in the lives of sex workers and trafficking survivors.”

That report argues that decriminalization is beneficial to trafficking victims. 

“Sex workers are the first line of defense against trafficking and should be partners and experts in preventing exploitation,” it says. “The fewer viable economic choices people have, the more likely they are to be exploited in their attempt to survive.”

“Sex work is work,” however, isn’t the stance of the ACLU either. It argues for decriminalization, not legalization — a significant difference.

“The preponderance of the evidence indicates that full decriminalization would result in improved conditions for those who engage in sex work, particularly those most marginalized, and would help reduce the crisis of police violence and mass incarceration in the U.S.,” the ACLU report concludes.

Covenant House (and third-wave feminism) still doesn’t agree – and it’s because of the kids who find refuge there.

Disagreements abound

Kidnapped at night and thrown into a van by older men. Or held at gunpoint with tears streaming down their faces while young girls and women trudge handcuffed through a field to a basement. Bound and chained to the wall, women and young girls sit in cinderblock-lined rooms with no windows, being held captive by their pimps. Tortured and only let out for their mandatory sex work, they’re otherwise starved and beaten. That’s the image of human trafficking, right?

“The movies and TV make it look like everybody could equal that risk for trafficking, and, while everyone can be a victim of trafficking for sure, the pimps aren't stupid,” said Bigelsen. “They go after people who are vulnerable, people who don't have a family to look after them and are easily controlled through the trauma bond.”

Trauma bonding is a connection between an abuser and the person they are abusing, usually when the abused person begins to develop sympathy or affection for the abuser. It’s the result of an unhealthy attachment, according to the National Domestic Violence Hotline. Because of these bonds, often trafficking victims don’t report that they’re victims.

“A lot of our survivors didn't even consider themselves victims, and that's because they traumatically bonded with their pimps,” Bigelsen said.

Covenant House is trying to break trauma bonds by giving the youth a place to live where they are not financially dependent on their pimps.

“One young person told me the first person who ever gave her a hug was her pimp. Someone else said the first person who ever gave her a birthday cake was her pimp,” she said. “So it's not like TV makes it look. Like people are in cargo ships and locked in chains…Instead, it's more like domestic violence where it alternates between one minute they're telling them I love you, the perceived affection that they've never had, and the next minute they're beating the crap out of them.”

Such ambiguity makes the cases difficult to prosecute.

“Trafficking cases are notoriously hard to prove,” she said.

Around 20 percent of the 2,000 youth in Covenant House NYC have been trafficked. That number is about 15 percent nationally across other domestic locations.

Legal avenues

People who argue for full decriminalization say that there are safety measures that have been in place to keep themselves and others safe from both trafficking and abuse, like Backpage, which police at one point had access to through an agreement with the company.

“When Backpage was still up, it was a really different environment. I was able to screen clients. We had group texts of sex workers, and we’d warn each other about police or bad dates. We’d send each other addresses and license plate numbers as we were leaving for dates and check in on each other and follow up. We kept each other safe,” said Victoria Walker in the Data for Progress report.

Those who work in the trade not only can’t find a way out but don’t want to.

“There were times I tried to stop doing sex work and tried just to work a straight job, but bills would start piling up again,” said Tamika Spellman, a sex worker cited in the 2020 Data for Progress Report.

She tried to work unionized jobs, but “those just don’t exist anymore.” 

“As laws move down the continuum from more to less prohibitive or restrictive on consensual sex work, workers experience less harm, and there is no strong evidence to indicate negative impacts on crime, health, or safety,” wrote the ACLU report. 

Covenant House just disagrees with that stance, and it looks like both laws will face off in 2022 in the New York State Senate.