Meena Saraswathi Seshu, Aarthi Pai, and Arvind Narrain[1]
It is unfortunate that the CEDAW Committee, which is specifically constituted to hold States responsible for eliminating of all forms of discrimination against women, is itself discriminating against sex workers who made submissions to the Committee, while it was drafting General Recommendation 38 (GR 38) since 2019[2].
Discrimination against women cannot be eliminated if a single woman is discriminated by the violence of exclusion. Sex work is the adult provision of sexual services for money or in kind. GR 38 is clear about trafficking for every other form of female labour, while targeting `prostitution’ and refusing to accept that provision of sexual services is a form of labour. Provision of sexual services is a livelihood option for many women, especially women from the Global South. Many of them are migrants within and across borders, and they have a right not to be discriminated against by a narrow understanding of their reality. They demand freedom from exploitative practices and safe working conditions, and GR 38 denies them just that.
Stagnant approach to sex work?
The claim of CEDAW’s dynamism[3] rings hollow when it does not protect sex workers who call for recognition of their work as decent work and demand labour protection in the context of migration, trafficking, or exploitation within their work. It continues to conflate sex work with trafficking, exposing millions of sex workers to the risk of violence and unsafe working conditions. It strips them of a life of dignity, a principle that CEDAW upholds. Indeed, a golden opportunity has been lost to demarcate the difference between sex work and trafficking in the GR 38 on trafficking in the context of global migration of women and girls. The text of the document continuously interchanges exploitation for the prostitution of others and exploitation of prostitution, which is reflective of a confused approach to trafficking and to sex work.
Every woman has the right to practice any profession – why discriminate against women in sex work?
GR 38 violates the right of women in sex work to productive work and to just and favorable conditions of work. Persons doing sex work are often at the bottom of the socioeconomic hierarchy globally. They seek to make a livelihood in extremely difficult circumstances. GR 38 by implicitly seeking to confuse sex workers within the definition of persons who are trafficked; makes the lives of those who make a livelihood from sex work that much more precarious. The injustice of withdrawing the right of occupation from adult persons also hits at the norm of equality. On the question of sex work, the Committee treats adults who engage in that profession as persons in need of protection and escape.
Denuding sex workers of their right to practice the profession of their choice hits at the right to life itself. The Committee having failed to ensure equality of opportunity now proceeds to make the precarious lives of those in very difficult circumstances even more unviable.
Instead of addressing human trafficking from the lens of redressing socioeconomic inequality, the GR continues to criminalize the livelihoods of poor women.
Criminalising demand for sex work– ignoring narratives?
In an ill-advised recommendation, the Committee targets the demand for sex work and calls on Countries to penalize demand.[4] In many contexts, women choose sex work as a preferred form of labour over more ardent, harsh and exploitative working conditions with much lower pay, such as construction work or brick kiln work. By criminalising demand, women who have willingly opted to engage in sex work are criminalised. Sex workers have brought to the Committee’s attention that demand criminalization is used by governments and anti-trafficking abolitionist groups to harass and arrest sex workers and their clients.
The Committee has ignored the voices of sex workers who have consistently submitted independent status reports, detailing the manner in which anti-trafficking laws are used to target consenting sex workers and their clients, and forcibly raid and incarcerate them in rehabilitation homes.
The Committee sacrifices its claim to be dynamic and non-discriminatory when it comes to sex work. Is this because the question of sex work is freighted with notions of morality? When the impulse to defend a majoritarian morality prevails over the duty to allow adults to exercise their right to autonomy and freedom to practice the profession of their choice; it amounts to discrimination. You then become responsible for the very harms you profess to address.
Not extending labour protection and safe migration framework to sex workers – is that not discriminatory?
There is ample evidence to show that when sex workers organize together, they are able to negotiate better wages, working hours, and as well as bettering their health outcomes and reducing their exposure to violence and exploitative practices. The Committee recognizes the intrinsic value of promoting organizing and labor standards for other workers, but falls short of extending the same for sex workers.
Women in sex work migrate both within countries and between borders in search of better income and livelihood opportunities. The exclusion of sex workers from the frame of migrant workers denies them the opportunity to address violence and exploitative practices within their work.
The protection of rights of migrant women workers, women in sex work, and women in the entertainment sector is critical if the Committee desires to prevent the harm of trafficking for prostitution as envisaged in the Trafficking protocol.
When you don’t stand with sex workers, you stand against them!
[1] Meena Saraswathi Seshu is a FAR member and the General Secretary of SANGRAM; Aarthi Pai is a Lawyer and the Executive Director of SANGRAM; Arvind Narrain is a lawyer based in Bangalore. He is the co-editor of Because I have a voice and co-author of Breathing Life into the Constitution.
[2] CEDAW Committee General Recommendation on Trafficking in Women and Girls in the Context of Global Migration, available in: https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CallTraffickingGlobalMigration.aspx
[3] Concept Note prepared for the Committee on the Elimination of Discrimination Against Women on its elaboration of a General Recommendation on Trafficking in Women and Girls in the Context of Global Migration, Para. 21. Office of the High Commissioner United Nations Human Rights.
[4] Para 61, GR 38. Discourage the demand that fosters exploitation of prostitution and leads to human trafficking.