From Homohysteria to Inclusivity: Declining Homophobia and the Softening of Masculinity.

By Eric Anderson and Max Morris

In North America and Western Europe, opposition to homosexuality peaked in the late 1980s. Homophobic attitudes at this time were so intense and pervasive that Anderson (2009) has theorized such cultures as ‘homohysteric.’ While homophobia is the culturally produced fear of, or prejudice towards, homosexuals that can be manifested in legal restrictions, school-ground bullying and sometimes violence, homohysteria refers to the fear faced by heterosexuals (or closeted homosexuals) of being thought gay through the ‘wrongdoing’ of cultural gender norms. Homohysteria occurs when three factors are present: 1) widespread awareness that homosexuality exists within a significant portion of the population; 2) strong cultural homophobia; and 3) conflation of male femininity with homosexuality.

In the 1980s, these three factors met with force in Anglo-American cultures. Not only was this period marked by a resurgence in conservative Christian ideology, but when the HIV/AIDS epidemic hit, the sexual orientation of many ostensibly heterosexual people was revealed. As colleagues, neighbors, friends, family members, and even well-known celebrities began to die from the ‘gay disease’ awareness grew that almost anyone could be secretly gay. At this time, homophobic attitudes were further bolstered by the actions (or inactions) of conservative political leaders such as Reagan and Thatcher, and the moral crusade of fundamentalist Christian preachers against homosexuality. In short, this was an awful time to be gay, or to be thought gay.

In a society which disproportionately privileges heterosexuality, men and boys will go to great lengths to distance themselves from the stigma of homosexuality. But because sexuality lacks morphological markers (unlike race, gender or age), no one can definitively prove that they are straight. Thus, men turned to homophobia, misogyny and aggression to affirm their heterosexuality. Furthermore, given the association between male femininity and homosexuality, homohysteria led men to adopt and endorse exaggerated hyper-masculine behaviors in an attempt to avoid homosexual suspicion. It is within such a cultural context that Kimmel (1994) suggested homophobia is masculinity.

One way to establish one’s masculinity was through the testosterone-fuelled institutions of competitive sport available to young men in high schools and universities. It was here that scholars began to document the torment young men (especially young sporting men) inflicted upon their less athletic or less masculine, but especially their gay male peers. At this time, researchers found exceptionally high levels of homophobic bullying and social exclusion directed at gay and bisexual male students, or those perceived to be so. These narratives of oppression were shown to be particularly deleterious in educational settings, where LGBT students maintained elevated levels of absenteeism, depression and suicide (Rivers 2011).

Since the early 1990s, however, cultural homophobia has been in rapid decline in North America and Western Europe, something captured by both qualitative and quantitative studies. In the United Kingdom, for example, nearly 64% of the population thought that homosexuality was ‘always wrong’ in 1987. Since then, a remarkable shift in attitudes has occurred with only 24% answering the same way in 2006 (Kozlowski 2010). Matters were worse in the United States, where up to 78% of the public thought that homosexuality was ‘always wrong’ in 1987. This number has fallen significantly to 46% by 2010 (Keleher & Smith 2012).

This liberalization of attitudes towards sexual minorities has occurred alongside an expanded social and political landscape for LGBT people. Most recently, in June 2013, the United States Supreme Court ruled that the ‘Defense of Marriage Act’ (DOMA) was unconstitutional. In this same year, the United Kingdom’s Conservative-led government introduced and passed the Marriage (Same Sex Couples) Act, granting same sex couples full legal equality, joining a growing chorus of nations to pass such legislation.

Scholars have now begun to document a remarkable decline in homophobic attitudes among male youth. In his book, The Declining Significance of Homophobia, McCormack (2012) found that as cultural homophobia retreats, young heterosexual men’s behaviors towards one another have become softer and more inclusive. In the absence of homohysteria, these men no longer feared being thought gay and rejected homophobia on their school campuses outright. Importantly, this development has allowed for an expansion of gendered behaviors, with young men now able to occupy once exclusively feminized terrains; straight male youth today are willing to show public displays of intimacy with one another, whether it’s through cuddling, kissing (on the cheeks and increasingly on the lips), or dancing together in clubs (Anderson 2009). Incredibly, this trend is especially true of young sporting men, as Eric writes about in his forthcoming (2014) book, 21st Century Jocks.

The dramatic transformation in attitudes seen over recent decades is exemplified by the contrasting experiences of the two authors of this blog. Eric Anderson attended a conservative high school in Southern California during the late 1980s. Eric’s school environment and wider culture was so intensely homophobic that he did not dare come out of the closet until he was 25. As America’s first openly gay high school coach, in 1993, his coming out became a very public affair. In his autobiography, Eric recounts how one of his (heterosexual) athletes was beaten to near death by another student, merely for his association with a gay coach (Anderson 2003). Max Morris, on the other hand, attended high school in a liberal city in the South-West of England during the late 2000s. His school environment and wider culture was so gay-friendly that he was comfortable coming out of the closet aged just 15. With widespread support from his peers, Max’s coming out actually made him more popular. As an effeminate, flamboyant, openly gay student, he was elected student president at a religious high school. At no point was he marginalized by his peers because of his sexuality (McCormack 2012).

These anecdotal accounts are not unique. Rather, they are representative of what the sociological research has found, and is finding, across Western cultures. Those who grew up in ‘Generation X’, like Eric, had to deal with an aggressive, misogynistic, homophobic form of masculinity, one which excluded gay youth and made school life a misery for many. Those growing up in the 21st Century, or as Eric terms them in his book, ‘Generation i,’ like Max, are faced with a highly inclusive form of masculinity, instead. Thus, not only are young straight men’s friendships and school experiences enhanced by the erosion of homohysteria, so too are those of sexual minorities (McCormack 2012). LGBT youth growing up today face very little direct discrimination or homophobia from their peers. In short, by comparison, this is an amazing time to be gay, or to be thought gay.

References

Anderson, E. (forthcoming). 21st Century Jocks: Sporting Men and Contemporary Heterosexuality. Basingtsoke, UK: Palgrave-McMillian.

Anderson, E. (2009). Inclusive masculinity: The changing nature of masculinities. London: Routledge.

Anderson, E. (2003). Trailblazing: The True Story of America’s First Openly Gay Track Coach. Hollywood, CA: Alyson Press.

Keleher, A. & Smith, E. R. (2012). Growing support for gay and lesbian equality since 1990. Journal of homosexuality59(9), 1307-1326.

Kimmel, M. (1994). Masculinity as Homophobia: Fear, Shame and Silence in the Construction of Gender Identity. In, H. Broad and M. Kaufman, Theorizing Masculinities. London: Sage.

Kozlowski (2010). Homosexual moral acceptance and social tolerance: Are the effects of education changing? Journal of Homosexuality, 57(10), 1370-1383.

McCormack, M. (2012). The declining significance of homophobia: How teenage boys are redefining masculinity and heterosexuality. Oxford University Press.

Rivers, I. (2011). Homophobic Bullying: Research and Theoretical Perspectives: Research and Theoretical Perspectives. Oxford University Press.


Professor Eric Anderson is an American sociologist at the University of Winchester, England and an academician of the British Academy of Social Sciences. He is known for his research on sexualities and masculinities studies, particularly concerning sport and relationships.

Max Morris is an ESRC-funded postgraduate student at Durham University. His research examines, sexualities, masculinities, male sex work and the improving experiences of LGBT youth.

This blog was first published on the British Sociological Association: Postgraduate Forum ‘Guest Blog’, available here: http://bsapgforum.com/guest-blog/

The Political Philosophy of Prostitution: Should Selling Sex be Legalised? (Dissertation Thesis)

CONTENTS

PART I: The Politics of Prostitution

Chapter 1: A Changing Social Landscape

Chapter 2: Oppression vs. Empowerment

PART II: Liberal Political Philosophies

Chapter 3: Utilitarianism

Chapter 4: Libertarianism

Chapter 5: Egalitarianism

PART III: Criticisms and Conclusion

Chapter 6: Feminism and Socialism

Chapter 7: Conclusion

PART I: The Politics of Prostitution

The title of this dissertation thesis, The Political Philosophy of Prostitution[1], raises two initial questions. First, what can political philosophy tell us about prostitution or sex work? Second, what can the study of a specific social issue, such as prostitution or sex work, contribute to our understanding of political philosophy? Drawing on the relationship between politics, social theory and political philosophy, I hope to answer these questions by developing a strong line of argument in favour of the legalisation of prostitution.

In Chapter 1, I focus on the social, political and legal context within which debates around prostitution are situated. Through an analysis of the sociological literature on sex work, I expose some of the myths and stereotypes that cloud this provocative issue. I also provide an empirically informed foundation for the subsequent philosophical debates, which follow in Parts II and III. Although my focus in this chapter will be on the United Kingdom, the philosophical arguments presented in subsequent chapters are intended to have universal application.[2]

In Chapter 2, I consider two competing approaches to the question of whether sex work should be made legal: the oppression paradigm and the empowerment paradigm. The oppression paradigm holds that prostitution is inherently harmful to sex workers, and should be criminalised for their own protection. The empowerment paradigm, on the other hand, holds that where problems do exist, these can be rectified by making sex work legal. I shall argue that the empowerment model captures the experiences of sex workers more accurately, and offers a better solution to the problems that sex workers face.

Chapter 1: A Changing Social Landscape

Turning first to the empirical aspect of this dissertation, in this chapter I will examine the social, political and legal context within which prostitution takes place. In the Sexual Offences Act 2003, the term ‘prostitute’ is defined as ‘a person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment’. Payment can involve anything from cash payment to ‘the provision of goods or services (including sexual services) gratuitously or at a discount’ (Home Office 2003). Prostitution does not occur within a vacuum and it has profound socio-economic and political dimensions that are influenced by the culture within which it is situated (Matthews & O’Neill 2003). This introductory chapter also looks at the sociological discourses that have characterised prostitution over recent decades. I will look at how academics, activists and feminists have attempted to describe the experiences of sex workers, and some of the difficulties this has generated.

In the United Kingdom, there are approximately 80,000 sex workers. Although most sex workers are women (85 to 90 per cent), a significant proportion (up to 40 per cent) of those based in densely populated urban areas are men (Scambler 2007: 1080; Hudson & Rivers, 2002). The legal status of these sex workers is highly complex. Although exchanging sex in return for payment is legal, ‘behind closed doors’, there are a range of laws regulating when, where and how sex work may be performed legally. As Pateman (1988: 190) comments, ‘where the act of prostitution is not itself illegal, associated activities such as soliciting often are’. For example, both soliciting in a public place and operating from a brothel are prohibited by law (Home Office 2003). Furthermore, in recent years, there has been a marked shift towards abolitionist policies, ‘with new anxieties about community safety and exploitation joining more long-standing concerns about morality and decency’ (Scoular, Pitcher, Campbell, Hubbard & O’Neill 2009: 30; see also Home Office 2006).

Sociological Perspectives

Law makers have been heavily influenced by the work of sociologists who study prostitution, and there is a long history of research into the experiences of sex workers in the United Kingdom. Since the 1940s, social research into sex work has been dominated by an abolitionist approach, aimed at regulating prostitution through punitive and exclusionary legal reforms (Scoular & O’Neill, 2007; Weitzer 2009). This approach has tended to frame prostitution as a deviant behaviour,  attempting to explain the entry of men and women into sex work in terms of ‘intrinsic or environmental pathologies’, as the result of social or psychological dysfunction (Smith, Grov, Seal & McCall 2013: 2). Thus, the deviancy model has led to an association between sex work and moral deviance both ‘in the public imagination and embedded in law’ (O’Neill 2010: 211). If not attempting to outlaw commercial sex outright, proponents of this model have encouraged the government to keep it hidden from public view.

Concerns about the social impact of sex work expanded during the 1980s, in response to the rise of HIV/AIDS. This health concern emerged as the result of ‘(misplaced) fear that sex workers were key vectors in the spread of HIV/AIDS’ (Scambler 2007: 1081). At this time, sociologists began to focus on risk behaviours and whether unprotected sex and drug use contributed to the spread of HIV, examining issues related to sex workers’ exposure to diseases and other clinical implications of sex work (Smith et al. 2013). Although this research was more sympathetic to the needs of sex workers, prostitution continued to be construed as problematic for both those engaged in the industry and wider society (Weitzer 2009). The medical approach also exaggerated the dangers of sexually transmitted infections, leading to greater social stigma. As Scambler notes (2007: 1080), stigma directed towards sex workers over the fear of sexually transmitted infections intensified over this period, with many holding the belief that sex workers were a ‘source of transmission into the respectable community of heterosexual families’.

Although the deviance model and the medical model have been enormously influential in shaping government policies, both are ‘marked by a failure to focus on sex work as organised economic and social activity’ (Connell & Hart 2003: 7). Indeed, research aimed at social policy interventions has failed to examine sex work from the perspective of sex workers themselves, focusing instead on public health concerns or the affected communities (Scoular et al. 2009). This has been reflected in the regulatory policies enforced by the State, which Scoular and O’Neill (2007: 774) argue do not allow for a ‘broader understanding of social inclusion, social justice and citizenship in relation to the complex experiences, structures, processes and practices of sex work’. In more recent years, however, researchers have begun to explore the experiences of sex workers directly, focusing on their needs and interests ahead of other groups.

Stereotypes and Stigma

Social theorists have also contemplated the role of stigma in regulating the sexual autonomy of citizens. For Goffman (1968), stigmatised individuals can be classified as those who offend against ‘norms of identity or being’, whether it’s on the grounds of race, gender, sexuality or other individuating characteristics or behaviours. For example, female sex workers have traditionally been associated with the ‘whore stigma’, used to disassociate prostitutes from ‘respectable’ women (Ericcson 1980: 342). As Scambler (2007: 1086) comments, ‘It is not what they do but what they are. Their deficit is ontological rather than moral’. The symbolic significance of such social stigma is deeply troubling, as Nussbaum (1999: 297) argues,

The stigma traditionally attached to prostitution is based on a collage of beliefs most of which are not rationally defensible, and which should be especially vehemently rejected by feminists: beliefs about the evil character of female sexuality, the rapacious character of male sexuality, and the essentially marital and reproductive character of “good” women and “good” sex.

Stereotyping has also been commonly used to make essentialist claims about the characteristics of sex workers, furthering the stigma directed against them. The way social researchers describe prostitution has tended to generate unrepresentative stereotypes. For example, researchers have focused on a narrow binary between street-based sex work, on the one hand, and indoor-based sex work on the other. Indoor- based sex workers include those selling sex from a brothel, hotel, massage parlour or private residence, or those who belong to an escort agency. Street-based sex workers are often labelled as ‘streetwalkers’ or ‘rent boys’ (when men are considered at all). One problem with focusing on these two groups is that a dichotomy has emerged between the safety of those selling sex indoors, and the danger faced by those selling sex on the streets. This is problematic, especially given that much less research has been done with indoor-based workers, even though ‘street work is far less common than indoor work’ (Weitzer 2009: 217). This has resulted in a skewed and over-simplified perspective that tends to emphasise the negative experiences of a small minority of sex workers (O’Neill 2010: 220).

Another discourse that has emerged more recently is that of ‘sexual trafficking’, which describes women who ‘have all been kidnapped, tricked or otherwise coerced’ into leaving their countries of origin (Malarek 2004). The prominence of this discourse is problematic for a number of reasons. First, while there has been an increase in the number of ‘migrant’ sex workers to the United Kingdom over recent years, these workers are not usually trafficked women (Scambler 2007: 1083). Furthermore, as Agustin (2006: 129-130) points out, the term ‘trafficking’ is sometimes interpreted ‘so that all people who help migrants become traffickers. This may include family, friends, lovers, agents and entrepreneurs’. Government legislation also contributes to this problem, by leaving the interpretation of what constitutes trafficking to the courts (Scambler 2007: 1083; Home Office 2006).

The problem with this analysis is that most migrant sex workers do not fall into the category of ‘trafficked’ women. Rather, they are what Scambler (2007) terms ‘opportunists’, women who move to a new country for job opportunities, to fund higher education, or to support family members. All of the women in Scambler’s study viewed sex work as ‘an opportunity to make a lot of money quickly’. Half of those he interviewed left other low-paid jobs to become sex workers, while the others had been introduced to sex work by a friend already in the industry. All his participants had left their home countries voluntarily and none were forced or coerced into sex work (Scambler 2007: 1085).

Sexual Liberation

Today, the regulation of sex work occurs within a broader cultural shift toward a more sexually permissive society (Anderson 2012). In an influential paper, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, Gayle Rubin (1984) captured the moralistic zeitgeist of the 1980s. She described how multiple sexual behaviours, including homosexual, promiscuous, non-married, and commercial sex, were considered socially and morally reprehensible. However, over the past few decades there has been a dramatic liberalisation of attitudes towards sexual behaviours once considered deviant. For example, Bogle (2008) documents a culture of ‘hooking up’, in which younger people engage in casual sex outside of long-term relationships, while Anderson (2009) and McCormack (2012) have documented the rapid decline of homophobia among students and youth more generally. Non-monogamous sex has become more acceptable and pre-marital sex is so common that it has almost become an expectation in contemporary societies (Anderson 2012). Even those who oppose the legalisation of sex work have noted that casual sexual relationships ‘no longer carry the social sanctions of twenty or thirty years ago’ (Pateman 1988:189).[3]

In spite of this liberalisation of attitudes, however, commercial sex has remained a highly stigmatised activity. As Shrage (2012) writes,

Over the past several decades, sexual and gender dissidents have achieved greater recognition and rights (e.g. lesbians, gay men, and transgendered persons), and women’s claims for economic and political justice are being heard. Yet, sex workers, many of whom are persons who have been socially marginalized because of their class, nationality, race, sex, sexual orientation, or gender expression, have not achieved significant recognition for their issues and place in society.

From the sexual liberationist perspective, the only distinguishing factor between sexual labour and more conventional forms of labour is that the former involves sex. This, they contend, is not a good-enough reason to criminalise prostitution. To do so is discriminatory towards those who hold more progressive attitudes towards, and engage in, commercial sexual activity, which cannot be tolerated in a liberal, sexually progressive society. 

Chapter 2: Oppression vs. Empowerment

Having studied the ways in which prostitution has been regulated by the state, in Chapter 2 I examine two normative positions that have emerged from the sociological literature on prostitution: the oppression paradigm and the empowerment paradigm. These two approaches set out the main arguments for and against the legalisation of sex work. Advocates of the oppression paradigm hold that prostitution is extremely harmful to those involved in the industry. They further argue that the total abolition of sex work is the only viable solution. By contrast, those who subscribe to the empowerment paradigm hold that only a minority of sex workers have damaging experiences. They argue that where problems do exist, these can be rectified by making sex work legal. I shall argue that the empowerment model is both more accurate and provides a better solution to existing injustices.

The Oppression Paradigm

The oppression paradigm argues that prostitution ‘is a quintessential expression of patriarchal gender relations’ (Weitzer 2009: 214). The stereotypes generated by the indoor/outdoor dichotomy are seized upon by advocates of the oppression paradigm, who tend to focus on street-based sex work, trafficked women and others who have been victimised by their experiences of selling sex. These stereotypes are presented by oppression theorists as being representative of all (or most) sex work. The oppression paradigm has been articulated most forcefully by radical feminist writers such as Dworkin (1993) and MacKinnon (1989), who argue that prostitution forms part of a wider patriarchal political regime, which seeks to oppress women. As Weitzer (2009: 214) comments, these authors claim ‘that exploitation, subjugation, and violence against women are intrinsic to and ineradicable from sex work, transcending historical time period, national context, and type of sexual commerce’.

Those who adopt the oppression paradigm rely on the use of dramatic language to emphasise perceived problems with prostitution. For example, in Prostitution and Male Supremacy, Dworkin (1993: 6) argues that prostitution is a political mechanism utilised by men to subordinate and violate women. In this text, Dworkin uses rhetorical devices such as repetition and hyperbole to suggest that prostitution is oppressive and misogynistic:

In general, the prostituted woman is seen as the generative source of everything that is bad and wrong and rotten with sex, with the man, with women. She is seen as someone who is deserving of punishment, not just because of what she  “does” – and I put does in quotes, since mostly it is done to her – but because of what she is.

Phrases such as ‘the prostituted woman’, ‘sexual slavery’, ‘paid rape’ and ‘survivors’ are used repeatedly by oppression theorists to indicate that ‘prostitution is something done to a person, not something that can be chosen’ (Weitzer 2009: 214). These language choices are problematic because they position sex workers as wholly lacking in autonomy and agency. This should concern feminists who hold that women should be considered as autonomous agents, with the power and rational capacity for moral choice (Nussbaum 1999: 297; see Chapter 7).

Weitzer (2009: 214) further critiques this paradigm, arguing that most claims made by oppression theorists ‘are articles of faith not amenable to verification or falsification’. He notes that when these writers present empirical evidence to support their claims, ‘they typically describe only the worst examples of sex work and treat them as representative’. As I also argued in Chapter 1, such examples of oppression are far from representative. Weitzer (2009: 214-5) concludes, those who are ‘unfamiliar with this literature would be surprised at the abundant, serious violations of the canons of scientific inquiry: anecdotes are generalized and presented as conclusive evidence, sampling is selective, and counter-evidence is consistently ignored’. Unfortunately, in spite of all its faults, the oppression paradigm has been influential in policy debates surrounding prostitution. In multiple pieces of legislation, the view that sex workers are ‘victims of circumstance’ and that sex work has a detrimental impact on women ‘has been presented as a self-evident truth, justifying a zero-tolerance approach’ (Scoular et al. 2009: 34).

The Empowerment Paradigm

In direct opposition to the oppression paradigm, the empowerment paradigm ‘focuses on the ways in which sexual commerce qualifies as work, involves human agency, and may be potentially empowering for workers’ (Weitzer 2009: 215). Although writers who adopt the empowerment model accept that aspects of the oppression model may ‘reflect how some sex work manifests itself when it is criminalized’, they argue that once legalised, these problems would be mitigated or eliminated. They argue that the problems of exploitation and abuse described by oppression theorists, while only affecting a small minority of sex workers, can be resolved through legalisation. Importantly, however, those who adopt this paradigm ‘do not necessarily argue that sex work is empowering but instead that it has the potential to be so’ (Weitzer 2009: 215).

Through the legalisation of prostitution, advocates of the empowerment paradigm argue that state interference could be used to improve the working conditions and safety of sex workers. This model also highlights problems with existing legislation, which allows for sex work to occur in private spaces, but not in brothels or other indoor establishments where mechanisms may be put in place to ensure sex workers are safe. For example, ‘indoor venues typically have some screening mechanisms, video surveillance, and alarm systems’ to alert the police of abusive activities (Weitzer 2009: 219). Thus, if the welfare of sex workers is the primary concern, legalisation plus positive regulation seems to be the best method for achieving this end. It stops the industry from going underground where exploitative and abusive relationships are significantly more likely to occur (Matthews & O’Neill 2003).[4]

On these grounds, it is clear that the empowerment paradigm provides both a stronger analysis of the dangers faced by some, but not all, sex workers, and offers the most productive solution to these dangers: legalisation. It also aims to improve the situation for all sex workers, whether they have been oppressed or not, by providing them with greater recognition and security. The language of empowerment also corresponds with the objectives of sexual liberationists, discussed in Chapter 1. As British society has become more sexually progressive, sexual minority groups have begun to argue for greater representation and rights. This can only be a positive development for sex workers, who currently lack representation and are the targets of political and social stigmatization.

PART II: Liberal Political Philosophies

In Part II, I turn to a number of liberal political philosophies which I believe support the legalisation of prostitution. There is an array of competing philosophies within the liberal tradition, from Kantian liberalism to classical Utilitarian liberalism, and commentary on these various strands has tended to emphasise the differences between philosophers, rather than their similarities. However, Nussbaum (1999: 57) lists several key themes common to all strands of political liberalism, including an emphasis on personhood, autonomy, rights, dignity, and self-respect. She goes on to write,

At the heart of this tradition is a twofold intuition about human beings: namely, that all, just by being human, are of equal dignity and worth, no matter where they are situated in society, and that the primary source of this worth is a power of moral choice within them, a power that consists in the ability to plan a life in accordance with one’s own evaluations of ends.

Starting from these shared intuitions, however, political philosophers have reached radically different conclusions about how they ought to be implemented. In the next three chapters I provide detailed analysis of three influential liberal philosophers whose theories, I shall argue, support the legalisation of sex work: John Stuart Mill’s utilitarianism, Robert Nozick’s libertarianism and John Rawls’ liberal egalitarianism. While looking at some of the differences between these theorists, I will also attempt to demonstrate their common commitment to the equal worth of persons, and the importance of giving people the freedom to pursue their own ends. This includes the freedom to choose to sell one’s sexual labour.

Chapter 3: Utilitarianism

The first political philosophy I turn to is the utilitarian liberalism advocated by John Stuart Mill (1859), in his influential book On Liberty. Mill’s philosophy was built on the moral theory of utilitarianism, which was first advanced by philosophers such as Jeremy Bentham (Wilson 2012). Bentham held that ‘the pursuit of pleasure and the avoidance of pain were the twin aims of all human action’. The utilitarian argument for the legalisation of sex work is perhaps the most straightforward, in that it holds that sex work should be made legal so far as this maximises utility.  The problem, however, is that if legalising sex work would decrease overall utility, it must be prohibited. This is because maximising utility comes ahead of any other concerns, including the promotion of liberty. If prostitution has a negative impact on the wellbeing of women in general, as some feminist critics have claimed, according to strict utilitarianism sex work ought to be criminalised. However, Mill advocated a more nuanced consequentialist position than earlier utilitarian philosophers, arguing that liberty is central to the promotion of human happiness.

For a utilitarian, what is good depends on ‘internal mental states of pleasure or happiness’. Though for Bentham these ‘mental states are sensations of pleasure, for Mill they are far more complex states of experience’ (Donner 1991: 257). Consequently, Mill’s theory was concerned with both quantitative and qualitative utility. Mill expanded on Bentham’s quantitative hedonism in a number of ways, arguing that the state should exist to promote ‘utility in the largest sense, grounded on the permanent interest of man as a progressive being’ (Mill 1859: 15). To achieve this end, Mill believed that the promotion of liberty and individualism was paramount. He argued that ‘forms of government are to be evaluated in terms of their capacity to enable each person to exercise and develop in his or her own way their capacities for higher forms of human happiness’ (Wilson 2012).

The Harm Principle

One of Mill’s most valuable contributions to liberal political thought was his articulation of the ‘harm principle’, which holds

that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (Mill 1859: 14)

This principle represents the limit to what is permissible in a free society. Importantly, causing harm to oneself is not deemed to be a sufficient warrant for restricting one’s liberty. Mill believes in absolute freedom of individuals to use their bodies as they see fit. This, he holds, is the best way to promote utility. On this view, those who oppose the legalisation of sex work must prove that prostitution causes harm to others. If one accepts the arguments put forward by proponents of the empowerment paradigm, however, sex work does not cause harm (to anyone), or if it does, this is the result of its illegal status.

For Mill, that prostitution causes offense or moral outrage is not a good enough reason to prohibit individual liberty. He held that ‘merely offending the moral sensitivities of others does not count as harm’ (Wilson 2012). This point is significant because it highlights how Mill was not only concerned by government interference with personal liberty, but also the ‘tyranny of the majority’. Mill feared that the weight of public opinion, social custom, or the moral sentiments of others would restrict people’s freedoms just as much as government regulation. In his view, freedom from coercion based on moral or religious custom was fundamental to human progress. As such, he held that groups or individuals should not restrict another’s liberty, ‘even though they should think our conduct foolish, perverse, or wrong’ (Mill 1859: 17). Therefore, not only does Mill’s liberalism urge us to support the legalisation of sex work, it also supports the erosion of stigma from an activity which is harmless to others.

Public sentiments and state interference are not mutually exclusive dangers. As Mill recognised, these threats to liberty are intimately linked: ‘The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion’ (Mill 1859: 11). This is problematic because it indicates that the criminalisation of prostitution is based not on rational grounds, but emotive ones. As I suggested in Chapter 1, the promotion of stereotypes by both academic and political commentators has led to an association between sex work and moral deviance both ‘in the public imagination and embedded in law’ (O’Neill 2010: 211). Crucially, we will struggle to change the abolitionist political climate surrounding sex work without also liberalising public attitudes towards groups perceived as sexually deviant.

Individualism

The harm principle represents only one side to Mill’s defence of liberty. He also promoted a positive conception of liberty, one that promoted individualism and human progress. At the heart of Mill’s liberal project is a commitment to individualistic expression. As Wilson (2012) writes, Mill believed that ‘Individuality and even eccentricity is better than massive social uniformity. The latter is the consequence of both terror and tyranny’. On these grounds, I believe Mill would have supported the progress made by the sexual liberation movement. This political movement seeks the expansion of rights for women, sexual minority groups and all those oppressed for performing sexual behaviours considered morally deviant.

Some critics have noted that there is a tension in Mill’s philosophy between the principle of freedom of expression, on the one hand, and the harm principle on the other. In particular, some have suggested these principles come into conflict over issues related to the position of women in society, as influenced by the sex industry (see Vernon 1996). This debate centres on whether the actions of sex workers concern only those directly involved, or whether it has an impact on wider society. First, as noted above, Mill would have rejected any argument based on moral disapproval, such as people complaining about the negative impact sex workers might have on the reputation of their neighbourhood (see Scoular et al. 2009: 31-4).  However, if the problem with prostitution is that it is exploitative or degrading to women, my response would be to say that this merely shows why exploitative and degrading sex work should be outlawed, not all forms of sex commerce, including activities many consider consensual and enjoyable. That the oppression paradigm tends to assume that all sex work is exploitative and degrading merely reflects the lack of sophistication to this objection. 

Chapter 4: Libertarianism

The second political philosophy I turn to is the libertarian position set out by Robert Nozick (1974) in Anarchy, State, and Utopia. Libertarianism supports a strongly negative conception of liberty (as opposed to positive liberty)[5], which holds that the state should not interfere with the economic or social actions of its citizens, except to protect property rights, prevent aggression against individuals, or to rectify past injustices. These restrictions are viewed as ‘absolute side constraints’, which cannot ‘be overridden by anything’ (Hailwood 1996: 10). On these grounds, Nozick believes that the ‘minimal state is the most extensive state that can be justified’ (Nozick 1974: 149). As Hailwood (1996: 9) writes, ‘Nozick’s libertarianism says under what conditions, if at all, the exercise of state power may be morally legitimate’.

The concept of self-ownership provides the moral foundation for Nozick’s theory. This concept holds ‘that each human being is the morally rightful owner of his own person and powers’ (Cohen 1985: 89). Nozick draws inspiration from the philosophy of John Locke, who argued that ‘every man has a property in his own person: this no body has any right to but himself.  The Labour of his Body, and the Work of his Hands, we may say, are properly his’ (Locke 1965). Therefore, Nozick’s conception of self-ownership includes a full property right to one’s body and to one’s labour. Any income derived from this labour (including sexual labour) is rightfully the property of the labourer. In terms of whether prostitution is permissible, Pateman (1988: 191) characterises the libertarian view as follows:

the prostitute is an owner of property in her person who contracts out part of that property in the market. A prostitute does not sell herself, as is commonly alleged, or even sell her sexual parts, but contracts out use of sexual services.

In Anarchy, State, and Utopia, Nozick put forward a series of arguments to defend this position, which I turn to now.

The Distribution Argument

Firstly, Nozick argues that no ‘end-state’ or ‘patterned’ principle of justice ‘can be continuously realized without continuous interference with people’s lives’. To illustrate this argument, he asks us to imagine a preferred distribution, D1. He then asks us to imagine what would happen to that distribution if free exchange is allowed into the equation. To use an example given by Nozick, consider what would happen in a socialist society if an entrepreneurial philosopher was allowed to exchange lectures for a small fee.[6] The result of this free exchange, or selling of services, would lead to a new distribution, D2, which no longer matches with your preferred distribution, D1. Nozick argues that this simple thought experiment demonstrates how ‘liberty upsets patterns’ (Nozick 1974: 161-3). His argument demonstrates that any society arranged according to patterned principles of distribution is unstable, unless held in place by an interfering state that restricts liberty (Mulhall & Swift 1992: 148).

Another example of a patterned principle given by Nozick (1974) is one that distributes according to moral merit. It is possible to see how a regime that prohibits the selling of sexual services, for traditional moral reasons, is following a patterned principle of distribution based on moral merit. This is because by prohibiting the sale of sexual services, it promotes services that are non-sexual (or deemed morally acceptable). Furthermore, the criminalisation of sex work provides an example of how the state must continuously interfere with people’s lives, through the policing of their sexual activities, to keep this regime in place. This is achieved through legislation such as the Sexual Offences Act 2003, which outlaws particular forms of commercial sex (Home Office 2003). Nozick holds that this is unjust because it takes away people’s freedom to do as they wish with their bodies.

The Kantian Argument

One might respond to the libertarian position by asking, why is an individual’s liberty over their body or property morally relevant? To answer this question, Nozick (1971: 31) suggests that his theory is based on an ‘underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent’. This principle is set out in Kant’s Groundwork of the Metaphysics of Morals, in which he proposes the categorical imperative, ‘Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.’[7] Following from Kant’s imperative, Nozick argues that it is unjust to impose restrictions on the liberty of an individual for the purpose of achieving an end, whatever this might be. To use people in this way, he argues, is to disregard their personhood and to treat them as tools.

Critics of libertarianism might pose a further question, why may we not disregard an individual’s personhood to achieve the greater social good?  In response, Nozick (1974: 33) argues that the idea of a ‘social entity with a good that undergoes some sacrifice for its own good’ simply does not reflect the reality of our social situation. In his view, there is no ‘social entity’, in a meaningful sense, ‘There are only individual people, different individual people, with their own individual lives’. Emphasising the ‘separateness of individuals’ is a core component of the liberal perspective. As Nussbaum (1999: 58) argues, liberalism starts from the (empirical) stance of recognising that persons are distinct from one another. To use a person as a means to achieving some greater social good ‘does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has’ (Nozick 1974: 33).

The Neutrality Argument

Another argument Nozick proposes to demonstrate the justice of libertarianism is the neutrality argument. This argument holds that if a government distributes resources without taking into consideration the preferences of individuals, then it is not being neutral towards its citizens. What right does the state have to treat those with expensive tastes differently from those with inexpensive ones? Or as Nozick (1974: 170) frames the question,

Why should the man who prefers seeing a movie (and now has to earn the money for a ticket) be open to the required call to aid the needy, while the person who prefers looking at a sunset (and hence need earn no extra money) is not?

In making such distributive decisions for its citizens, the state is discriminating against those who are consumption-loving, but not those who are leisure-loving. Although Nozick’s argument here is directed at the injustice of redistributive taxation, the neutrality argument can be applied equally well to the regulation of sex work. What right does the state have to determine that selling one’s sexual labour should be prevented, but not other forms of labour? To do so is to discriminate against those who enjoy buying and selling sexual services.

The Slavery Argument

It is worth noting that under libertarianism, not all economic transfers are permissible. For example, Nozick (1974: 152) notes that when ‘people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose’, this is not compatible with libertarian justice. Under his theory, actions which infringe on individual liberty or property rights must always be prohibited. In particular, Nozick is keen to emphasise the injustice of forced labour, which seizes a person’s time or income without their consent. Many feminists who adopt the oppression paradigm argue that prostitution is more like sexual slavery than sexual labour (see Chapter 7). However, if this were the case, libertarianism would not allow prostitution. I believe these opponents of legalisation are making a category error in classifying prostitutes as sexual slaves. To consider them as such is to define all sex workers as people who are involuntarily forced into labour. However, as we know from the testimony of many sex workers who were not forced or coerced in any respect, this simply isn’t the case (O’Neill 2001; Scambler 2007). Furthermore, as Ericcson (1980: 341) points out, if a sex worker sold her body, rather than sexual services, ‘she would no longer be a prostitute but a sexual slave’. Fundamentally, one can be opposed to slavery (of any description) without being opposed to consensual sex work.

Nozick draws on the concept of slavery to make one of his strongest arguments for libertarianism. The slavery argument holds that under patterned principles of justice, everyone ‘has a claim to the activities and the products of other persons’. According to Nozick, if a system redistributes wealth according to a pattern, it is ‘appropriating the actions of other persons’ (Nozick, 1974: 172). Thus, he believes that taxing someone is on a par with forcing him to do labour. This is because it ‘is equivalent to seizing hours from him and directing him to carry on various activities’ without payment. This is an affront to liberty because the state is deciding for you both

what you are to do and what purposes your work is to serve apart from your decisions.  This process whereby they take this decision from you makes them a part-owner of you; it gives them a property right in you.

An important distinction has to be made here between the concept of ‘forced labour’, through taxation, and ‘slavery’ (or sexual slavery), where a person’s actions are controlled absolutely. While forced labour makes someone a ‘part-owner’ of another, slavery grants them full-ownership over an individual’s body and liberty. While the former is a restriction on an individual’s freedom, the latter is its complete erasure.

Finally, there is another problem with the slavery argument (and libertarianism more broadly). Critics have argued that libertarianism is problematic because it prohibits any form of state interference, even where this might be thought beneficial to sex workers. For example, many liberal theorists hold that taxation is an acceptable limitation on liberty; some even argue that taxation is necessary for the promotion of liberty. As Nussbaum (1999: 297) argues, even where problems of coercion and exploitation may still exist, ‘the correct response to this problem seems to be to work to enhance the economic autonomy and the personal dignity of members of that class’. This response includes not only legalising the activities of sex workers, but also providing them with support services, paid for by the state through taxation. In particular, liberal egalitarians (see Chapter 5) and socialists (see Chapter 7) have argued forcefully against this aspect of libertarianism.

Chapter 5: Egalitarianism

The final political philosopher I turn to is John Rawls (1971), who set out his influential argument for liberal egalitarianism in A Theory of Justice. [8] Like Nozick, Rawls’ conception of justice is anti-consequentialist and draws on the Kantian principle of treating persons as ends. He also regards government neutrality as fundamental to justice, advocating a radical form of deliberative neutrality in his thought experiment, the original position. In this thought experiment, Rawls sought to determine the principles of justice people would arrive at from behind a ‘veil of ignorance’, from behind which agents are unaware of particular characteristics about themselves, such as their ‘genetic endowment and family background’. Rawls determined such characteristics, including one’s ethnicity, gender, sexuality, age, intelligence, income and wealth, to be ‘morally arbitrary’ (Swift 2006: 21-2). All individuating characteristics that might influence how a person chooses to distribute goods or formulate principles of justice are concealed in the original position, including one’s conception of the good. As Swift (2006: 21) writes, ‘Rawls believes that the way to find out which principles of justice are fair is to think about what principles would be chosen by people who do not know how they are going to be affected by them’.

Although many characteristics are concealed from agents in the original position, they do have limited knowledge about the world, such as general facts about persons and societies, political and economic theory, laws of social organization and human psychology, and that all human societies are subject to circumstances of justice (Rawls 1971: 109-112). Additionally, Rawls assumes that from behind the veil of ignorance agents will act in a rational, self-interested manner, seeking to minimise the amount of harm that may come to them once the veil has been lifted. He believes agents in the original position are ‘rational maximizers’, who seek to advance their own good as far as possible.

Under these conditions of ignorance, Rawls’ argues that agents in the original position will come to certain agreements about what is necessary for the promotion of justice. He argues they will desire ‘certain all-purpose goods’, which Rawls calls ‘primary goods’. These include liberties, opportunities, powers, wealth and self-respect (Swift 2006: 22). Agents ‘normally prefer more social primary goods rather than less’, because this promotes their ability to determine their own ends and protects them against grave misfortunes (Rawls 1971: 123). These primary goods are at the heart of Rawls’ liberal conception of justice, and their distribution is especially relevant for our purposes, given that sex workers may lack the liberties, opportunities, powers, wealth and self-respect that other members of society possess. From these foundations, he concludes that agents will agree to the following principles of justice:

  1. Each person is to have an equal right to the most extensive total system of liberties compatible with a similar system of liberty for all.
  2. Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity. (Rawls 1971, p. 51)

The Liberty Principle

The first, and most important, of the primary goods is guaranteed by Rawls’ first principle of justice, the liberty principle. The equal basic liberties protected by this principle are listed by Rawls (1971: 53) as follows:

political liberty (the right to vote and to hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person); the right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.

According to this conception of liberty, as with Nozick and Mill, the best way ‘to treat all citizens fairly is for the state not to take a view on how people should lead their lives’ (Swift 2006: 23-24). People have a right to decide for themselves how their lives ought to be lived. The liberty principle is given ‘lexical priority’ over the other principles of justice, because its role is so valuable. This means that the liberty principle cannot be sacrificed for the achievement of other principles under any circumstances.

One of the ways Rawls defends the priority of the liberty principle is by arguing that the liberty principle promotes self-respect, which he suggests is ‘the most important primary good’ because it assures us that we and our projects have value (Rawls 1971: 386). Although lexical priority is given to the liberty principle, Rawls also acknowledges that (negative) liberty alone is not enough to guarantee people will reach their full potential. As he notes, ‘the force of justice as fairness would appear to arise from two things: the requirement that all inequalities be justified to the least-advantaged person and the priority of liberty’ (Rawls 1971: 220). This means agents in the original position are also keen to promote their level of opportunities and income, which are needed to support their endeavours. These are ensured by the second principle, which is divided into two parts, the difference principle (a) and fair equality of opportunity (b).

The Difference Principle

In opposition to Nozick’s libertarianism, justice as fairness is committed to the redistribution of goods. Although Rawls shares with Nozick a belief in the moral equality of persons, he is also committed to greater material equality, so far as this benefits the least advantaged in society. The difference principle is not a commitment to distributive equality per se, but rather, to the structure of social and economic inequalities so that they are ‘to the greatest benefit of the least advantaged’. It’s easy to understand why, given their ignorance about their social and economic position, agents would seek to minimise the level of inequality. Taking into consideration the status of the least advantaged is important for responding to opponents of sex work legalisation, who claim that women are driven to sex work out of desperation, or because of economic necessity. The difference principle seeks to eradicate such economic hardship without taking away one’s freedom to pursue sex work.

As I outlined in Chapter 2, some feminists have argued that sex workers occupy an exceptionally disadvantaged position in society. Writers such as Dworkin (1993) have even argued that (female) sex workers represent the lowest possible social status one can occupy: the very base of a patriarchal hierarchy. Although such accounts are empirically questionable (Weitzer 2009), for the purposes of argument, we may assume that sex workers do occupy a low social and economic position. If correct, this represents a challenge to the element of free choice so fundamental to liberalism. However, rather than neglecting this problem, Rawls acknowledges it by stating that inequalities can only be justified if they enhance the situation for the worst-off , not in relative terms, but in absolute terms (Swift 2006). On this basis, one can assess whether the legalisation of sex work is just dependent upon whether it enhances or diminishes the situation for sex workers.

Fair Equality of Opportunity

The second element of Rawls’ (1971: 51) second principle of justice guarantees that where inequalities do exist, they should be ‘attached to offices and positions open to all under conditions of fair equality of opportunity’. Just as the first principle of justice is given lexical priority over the second, fair equality of opportunity is given lexical priority over the difference principle. The prospect of equal opportunities for those in the least advantaged position in society is hugely important for Rawls because it allows for movement out of social or economic hardship. Indeed, even if one is given financial assistance by the state, this may not advance one’s overall position if opportunities that could enhance one’s situation continue to be out of reach.

In relation to the position of sex workers in society this principle is extremely important. For most, sex work is not seen as a long-term career option. Many recognise that sex work is something they will only be able (or want) to do for a short period of time, and finding routes out of the sex industry can be a major concern (Scambler 2007). One of the major problems sex workers confront is how to exit the sex industry later in life. In Prostitution and Feminism, O’Neill (2001) documents the difficulties sex workers experience in gaining the necessary skills and qualifications to find and apply for steady employment after their long-term involvement in the sex industry. Thus, not only are sex workers limited by poor economic circumstances, but also by a lack of opportunities to move out of sex work.

This difficulty is reinforced by the stigmatised nature of prostitution. Sex workers and former sex workers are unable to inform prospective employers of their previous occupation, for fear of discrimination or prejudice (O’Neill 2001; Scambler 2007). On these grounds it seems clear that under Rawls’ theory, the current cultural climate, which excludes sex workers from many offices and positions open to others, is unjust. The criminalisation of sex work exacerbates this problem. By maintaining the deviant status of sex work, criminalisation legitimises the stigma sex workers face. Furthermore, as Nussbaum (1999: 292) argues, it’s not clear how criminalisation promotes the number of opportunities for sex workers, when all it does is take an existing option away from women who lack opportunities in the first place. Although this problem goes much deeper than the legal prohibition of prostitution, Rawls’ theory suggests that we should attempt to equalise opportunities for sex workers as far as possible. This could be done by introducing anti-discrimination laws, or providing sex workers with the skills and training necessary to exit sex work when they choose to do so.

PART III: Criticisms and Conclusion

Having presented a series of liberal arguments for the legalisation of prostitution in Part II, in Part III I turn to some of the strongest objections to the liberal approach. Feminists and socialists have mounted strong lines of argument against liberal conceptions of justice. Some feminist philosophers have challenged the liberal approach to prostitution, arguing that it does harm to both sex workers and the status of women in society more generally. Dworkin (1993: 10) expresses a deep scepticism about the way in which liberal values of autonomy and agency are constructed and implemented by male writers, suggesting that we need to be critical of ‘the role of men in creating a political idea of freedom that only they can actually have’. While feminist critiques hold that sex work reinforces gendered inequalities, socialists hold that sex work is grounded in class-based inequalities (Scambler 2007: 1090). Socialists criticise the liberal approach for its commitment to free-market economics, which includes the freedom to sell one’s sexual labour. They respond by arguing that the free market is inadequate for supporting the rights of workers who are exploited by their employers. In particular, socialists critique Nozick’s strong conception of self-ownership, arguing that libertarianism ignores the significance of material inequalities (Kymlicka 2002: 166). I respond to some of these concerns in relation to sex work here.

Chapter 6: Feminism and Socialism

In this Chapter, I turn to the ideas of Carole Pateman (1988), who draws on both feminist and socialist conceptions of justice to argue against the liberal defence of prostitution in her essay, What’s Wrong With Prostitution? Like Dworkin (1993) and MacKinnon (1989), Pateman suggests that while the social contract ‘establishes the rights and freedoms of men’, it also ‘establishes the terms of women’s subjection’ (Shrage 2012). In the view of these feminist philosophers, liberal political theories have a male bias built in, which is used to grant men ‘sexual access to women’. As Pateman (1988: 205) writes, ‘to answer the question of what is wrong with prostitution is to engage in argument about political right in the form of patriarchal right, or the law of male sex-right’. In particular she is critical of the role of the ‘social contract’ in establishing men’s rights to buy and sell women’s bodies in a patriarchal capitalist market.

Gender Essentialism

The first problem with Pateman’s analysis of prostitution is that it reinforces gendered stereotypes about sex workers. Her position is built on essentialist assumptions about the sexual roles of men and women, which ignores deviations from this norm, such as male sex workers. Indeed, as Pateman (1988: 199) notes, the ‘sale of men’s bodies for homosexual use does not have the same social meaning’ as the sale of women’s bodies. Thus, she is complacent to ignore the role of men who sell sex. Yet the existence of both male sex workers and female clients problematises Pateman’s narrow view of prostitution. By excluding male sex workers, she erases a large number of persons who may be victims of stigma. Indeed, gay male sex workers may even be more likely to face stigma for a number of reasons, such as their belonging to a sexual minority group and being associated with the spread of HIV (Davies & Feldman 1999). The social stigma associated with the rise of HIV in the 1980s was especially deleterious for male sex workers and the gay community in general (Anderson 2009; see Chapter 1).

Pateman’s arguments also rest on the false belief that women’s experiences of sex work are significantly more harrowing than men’s. If true, this would make it exceptionally difficult to find men who have worse experiences than women selling sex. However, this assumption isn’t borne out by the sociological research, which finds that the type of work engaged in matters greatly, while the gender of the sex worker is a less relevant factor (Weitzer 2009). For example, high-end female escorts, or so-called ‘call-girls’, tend to have significantly better experiences than street-based male sex workers, or so-called ‘rent boys’ (Wilcox & Christmann 2008). Thus, the gender essentialism inherent in radical feminist criticisms of the sex industry is profoundly misrepresentative.

Sexual Labour

Drawing on socialist ideas of class conflict and exploitation, Pateman considers women as an oppressed social class. In her view, the concept of ‘freedom of contract’ means that ‘men can buy sexual access to women’s bodies in the capitalist market’ (Pateman1988: 189). Just as with all forms of labour exchange, she argues, ‘the contract between client and prostitute is seen as a private arrangement between a buyer and a seller’ under the liberal social contract. Pateman (1988: 193) also uses the example of socialism to suggest that her opposition to prostitution need not ‘imply any adverse judgement on the women who engage in the work’. As she comments, when ‘socialists criticize capitalism and the employment contract they do not do so because they are contemptuous of workers, but because they are the workers’ champions’. Viewing herself in this light, Pateman believes that she is the champion of sex workers by calling for the abolition of sex work.

This argument does not hold up for a number of reasons. First, although socialists do criticise the employment contract, they do not criticise the roles performed by the workers and industries within capitalism. Whether capitalist or socialist, every society needs farmers, factory workers, mechanics, doctors, nurses, teachers, police officers, and perhaps even sex workers. The problem socialists have with capitalism is that it exploits workers. However, if the problem with the sex industry is that it exploits sex workers, this says nothing against the concept of sex work itself. Just as one could be an exploited factory worker under capitalism, or a liberated factory worker under socialism, so too could one be an exploited sex worker under the existing regime, or a liberated one under another (Swift  2006). Indeed, it is possible to imagine a socialised ‘sex service’, operating much like any other nationalised industry.

According to Pateman, the liberal approach suggests that ‘if the prostitute is merely one worker among others, the appropriate conclusion must be that there is nothing wrong with prostitution’ (Pateman 1988: 191). Indeed, if there are problems with prostitution, such as exploitation or poor working conditions, these problems are not specific to the sex industry. Therefore, it seems, there is no reason to treat sex work differently from other forms of labour (Nussbaum 1999). However, Pateman (1988: 200) further argues that ‘the prostitute is not quite like other women workers’ because her status is more uncertain and less safe. To illustrate, she draws on examples of historical criminal cases where prostitutes have been targeted by murderers (she uses the example of Jack the Ripper) and abusive relationships between ‘pimps’ and prostitutes.

Pateman’s reliance on clichéd historical accounts of the dangers faced by sex workers is unconvincing, largely because it draws on popular assumptions about prostitution, rather than contemporary evidence. Her position also ignores the fact that very many professions involve high-risk activities. Nussbaum (1999: 289) argues that just because an activity involves risk to our bodies does not mean we want to prohibit it entirely. She compares the dangers faced by sex workers to those faced by professional boxers: ‘it is certainly far less risky than boxing, another activity in which working-class people try to survive and flourish by subjecting their bodies to some risk of harm’. This point also draws on Mill’s harm principle, which states that causing harm to oneself is not a legitimate reason to restrict liberty. Furthermore, advocates of the empowerment paradigm can respond to Pateman that even if sex work is less safe than other forms of work, the best solution to this problem is its legalisation.

Sexual Slavery

Returning to some of the issues explicated in Chapter 3, Pateman reassesses her position to suggest that prostitution has more in common with slavery than voluntary labour. This is because, in her view, what is exchanged in the process of selling sex is not a woman’s labour, but her body. As Pateman (1988: 207) puts it, ‘When a man enters into the prostitution contract he is not interested in sexually indifferent, disembodied services; he contracts to buy sexual use of a woman for a given period’. Here, Pateman explains why the comparison between capitalist exploitation and prostitution breaks down; for while the capitalist employer is content to replace workers with machines, for the sake of profit, the man who ‘uses’ a sex worker is interested only in her body. Unlike wage slavery, with prostitution ‘the body of the woman, and sexual access to that body, is the subject of the contract’. This sale of bodies in the market, she argues, looks very much like slavery (Pateman 1988: 203-4).

This analysis of prostitution is, however, insulting to sex workers who have voluntarily chosen to sell their sexual services. To consider sex workers simply as passive bodies, bought and sold for men’s pleasure, is degrading to sex workers. It treats them as objects, whose skills are an irrelevant factor. Yet this view of sex work is misrepresentative, for as Nussbaum (1999) and Owens (2013) point out, sex workers have a unique and valuable set of skills that are esteemed in a sexual market place. These skills cannot be replaced with, to use Pateman’s (1988: 203) example, an inflatable doll. But just because sex workers cannot be replaced with objects, as the exploited factory worker can be, does not mean she is valued only for her body. In fact, what it really means is that the skill sets possessed by many sex workers are so valuable, they cannot be replaced by mere objects.

Sexual Service

The argument that sex workers possess a valuable set of skills was demonstrated in a recent Channel 4 documentary, which told the stories of a number of disabled people who turned to sex workers to fulfil their sexual desires. In this programme, one young man, John, hired an escort to lose his virginity. Interviews with the sex worker he hired, Laura, were particularly engaging. Laura spoke of the immense pride and satisfaction she takes in her work, seeing herself as ‘providing a unique and necessary service to men who might struggle to have an ordinary sexual relationship’ (Channel 4 2013). Another man, Karl, who was disabled later in life turned to ‘sexual healer’ Larissa, who seeks to ‘empower women and men through their sexuality’. Although Larissa does not advertise herself as an ‘escort or prostitute’, she does take money to provide therapeutic services that often include sexual contact with clients (see her website at http://www.sensualawakening.org). Larissa was able to give Karl his first sexual encounter since becoming disabled, which he found enormously rewarding.

Not only do these stories humanise both clients and sex workers, they also reveal an important perspective on the role of sex work, viewed as a compassionate social service. The notion of disabled people turning to sex workers is not an especially rare one either. In a recent article for the Guardian, Tuppy Owens (2013) describes a website she runs that provides escort services specifically for disabled people. Owens writes that her site is used by more than a hundred sex workers, who take pride in

giving disabled people the chance to be touched in a non-medical way, perhaps for the first time in their lives, to be held in a warm pair of arms and have their sexual dreams respected and lived out.

While Pateman (1988: 192) disparages the idea of a liberal ‘contractarian’ approach that allows anyone access to sex, ‘whether male or female, young or old, black or white, ugly or beautiful, deformed or handicapped’, it is difficult not to empathise with the perspective adopted by these sex workers, who hold that they’re performing a therapeutic social service (see Ericcson 1980: 342).

Chapter 7: Conclusion

In this dissertation I have presented a series of philosophical arguments calling for the legalisation of prostitution or sex work. In Part I, focusing on the social and political context within which debates around prostitution occur, I provided an empirically informed foundation for the subsequent philosophical investigation. Chapter 1 critically examined sociological accounts of prostitution, documenting how attitudes towards sexual deviance have changed dramatically over recent decades. Here, I argued that we now live in a more sexually permissive society, which is a welcome development. I also critiqued outdated and prejudiced attitudes, based on stereotypes about prostitution, which have continued to influence legislation in the United Kingdom. In Chapter 2 I commented on the two main normative approaches to sex work, the oppression paradigm and the empowerment paradigm. I defended the empowerment paradigm, which seeks to legalise prostitution and enhance the social and political recognition of sex workers.

In Part II, to provide a more rigorous philosophical defense of the empowerment paradigm I turned to three highly influential political philosophers, John Stuart Mill, Robert Nozick and John Rawls. Drawing on these writers’ liberal conceptions of justice, I made three independent arguments for the legalisation of sex work. In Chapter 3 I looked at Mill’s utilitarian defense of liberty, focusing on the importance of the harm principle and Mill’s defense of individualism. In Chapter 4 I turned to Nozick’s libertarianism to highlight a strongly negative conception of liberty that seeks to impose strong limitations on state interference in our social and economic activities. I detailed a number of arguments given by Nozick in defense of libertarianism, including the distribution argument, the Kantian argument, the neutrality argument and the slavery argument. In the final analysis, however, I suggested that libertarianism may not be compatible with the empowerment model because of its resistance to any form of redistribution (even where this might enhance the situation for sex workers). Finally, in Chapter 5 I turned to the liberal egalitarian conception of justice advanced by Rawls. I looked at how the position of sex workers could be enhanced by adopting Rawls’ principles of justice, which call for a political structure under which inequalities are arranged to the benefit of the least advantaged and all citizens are endowed with basic liberties.

In my introduction to Part II, I also noted how each of these liberal philosophers share a commitment to the equal moral worth of persons (Nussbaum 1999: 57). As such, although I addressed some of the disparities between these theories, I also looked at how each provides a defense of citizens’ rights to pursue their own ends. This led me to conclude that Mill, Nozick and Rawls would have supported my arguments for the legalisation of sex work. However, if asked to show my hand, I would tentatively conclude that Rawls’ theory is the strongest; first, because it corresponds most closely with the aims of the empowerment paradigm, and second, because Rawls’ commitment to greater equality of income and opportunity make his position stand up most convincingly against socialist and feminist criticisms. That said, I leave it up to my readers to decide which liberal philosopher provides the best theory.

In Part III, responding to feminist and socialist criticisms of liberalism, I provided a defense of the liberal approach to prostitution. In Chapter 6 I refuted Carole Pateman’s arguments against the liberal defense of prostitution. I argued that Pateman’s arguments fail on a number of counts. First, I pointed out that her vision of prostitution as a form of women’s subjection does not take into account the experiences of male sex workers. I also suggested that this gender essentialism misrepresents sex workers as passive agents, lacking in agency and autonomy. The liberal perspective challenges these flawed assumptions, which I have argued is empowering for sex workers who do not feel oppressed or victimised. Finally, I also proposed another conception of sex work as a compassionate social service, one that is compatible with either the free market liberal perspective or, perhaps more fittingly, socialist conceptions of social justice. As such, I conclude that the legalisation of prostitution is compatible with a whole range of political philosophies, from utilitarianism to libertarianism, from liberal egalitarianism to socialism. I even suspect that many feminists who share my intuitions about the justice of the empowerment paradigm will agree that legalising prostitution is the right thing to do.

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[1] Although language use around this topic is controversial and contested (as I discuss in Chapter 2), the terms ‘prostitution’ and ‘sex work’ will be used interchangeably throughout this thesis.

[2] Not all of the philosophers I draw on consider their principles universalisable. However, for the purposes of this argument, one may consider the situation from a global perspective or in the United Kingdom alone.

[3] For a defence of equal rights for gays and lesbians see Nussbaum (1999: 184-210) and for a defence of non-monogamous relationships see Anderson (2012).

[4] Arguments made by empowerment theorists often reflect arguments made by advocates of drug legalisation, who also suggest that criminalising such industries drives the trade underground where more harm is caused.

[5] The conflicting concepts of ‘negative’ and ‘positive’ liberty were articulated by Isaiah Berlin (2002) in his essay ‘Two Concepts of Liberty’.

[6] Nussbaum (1999: 283) also compares the services performed by philosophy professors to those performed by prostitutes, arguing that the two professions share many features in common.

[7] This quote is taken from Anarchy, State, and Utopia (Nozick 1974: 32).

[8] In putting together this explanation of Rawls’ theory I am indebted to the analysis given by Dr. Yvonne Chiu in her lecture series ‘Capitalism and Social Justice’ at the University of Hong Kong (2011).