Hoping for a Feminist Supreme Court

It’s a big week at the Supreme Court for our professional and personal communities. As most of us are already aware, tomorrow the SCC will hear arguments in the Bedford case and will ponder the criminality of certain acts related to sex work, namely communicating for the purposes of prostitution, being found in a common bawdy house and living off the avails of prostitution.

At the heart of the decision are questions of constitutionality, specifically whether these three Criminal Code provisions violate section 2 and 7 of the Charter. Both the Government of Ontario and the Government of Canada maintain that sex work is an inherently dangerous activity and that they don’t have an obligation to ensure safer laws for sex workers. The applicants, Terri Jean Bedford, Valerie Scott and Amy Lebovitch, are sex workers and former workers, arguing that the laws around sex work actively make their work more dangerous and put their lives at risk.

Our clients were sex worker advocacy groups, Prostitutes from Ottawa Gatineau Work Educate and Resist, and Maggie’s: Toronto Sex Workers Action Project, organizations that were among 8 intervener groups at the Ontario Court of Appeal. Intervener groups that ranged from Christian women lobby groups to HIV Advocacy organizations. This week the Supreme Court will hear from an even greater number of interveners including a group of purported “feminist” women’s organizations that argue that female sex workers have a false sense of consciousness and are too exploited to make their own choices.

Much as been argued, on the internet and otherwise, about these issues. We could reiterate our previous writings and post a detailed explanation of why these laws are paternalistic and redundant, how they harm sex workers and further unnecessarily criminalize members of Charter protected marginalized communities. But sex workers organizations like POWER, Maggies and Stella all say it better than we ever could.

Our fellow Slaw readers and lawyerly colleagues have probably already come to their own conclusions about the constitutionality of the Criminal Code provisions in question. But what we would like to draw attention to is the importance of a truly feminist and queer perspective when making these fundamental moral judgments about the sexuality of others. One of the key struggles of feminism is to validate women’s experiences and voices. As feminist practitioners we let my clients tell me how the law affects them and I believe them when they do. In terms of the constitutional challenge before the Supreme Court tomorrow sex workers have always been very clear: the laws don’t protect them, don’t deter them, and the enforcement of this provisions put their lives in danger. It is not ok for non-sex workers, including government lawyers, to advocate otherwise. Although the Supreme Court has never claimed to be a feminist institution, we hope out of all the advocates making submissions tomorrow, that the bench listens to the voices representing sex workers, and ultimately decides in favor of their knowledge and expertise.

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