Maxine Doogan knew that San Francisco was the place for her when she read about the work that was happening in the Bay Area for sex workers’ rights in a woman’s bookstore. In 1992, she moved to California, where she started the Sex Workers and Erotic Service Providers Legal, Educational and Research Project (ESPLERP) and began her work to decriminalize sex work. And now, she’s at the forefront of the next huge case that could do just that.
On October 19, the 9th Circuit Court of Appeals agreed to consider a case seeking to decriminalize sex work. (From here on, we’ll use “sex work” to refer to the currently illegal practice of exchanging money for sex—not the legal work done by people such as exotic dancers, adult film workers, and web cam performers). The case was brought by ESPLERP, along with two former prostitutes and a potential client against California’s Attorney General, and it could change the future of sex work for eight states, including California.
Sex work was originally outlawed in California in 1872, and the ban continued to be amended for the next several decades. As recently as 2016, the law was amended to treat minors who are involved in sex work as victims, rather than criminals. Only recently have “johns” - the men who seek out sex services and thus create the demand for sex work - been targeted as actively as the sex workers themselves. But now, we could see the full decriminalization of sex work -- and not just in California.
Doogan began her advocacy career when she spent some time working with the labor movement, producing and and editing interviews with human rights workers. She made the decision to be outspoken about her career in sex work and advocating for sex workers’ rights after her three children had left her home. Now she hopes to effect change nationwide.
“It’s been a long fight,” says Doogan. In 2008, Proposition K, a proposition that sought to decriminalize sex work in San Francisco, failed to pass. So Doogan started ESPLERP and decided to take a different approach.
The idea for a lawsuit came to Doogan while she was speaking with sex work activist Margo St. James about Prop K’s failure. Doogan admits that the undertaking felt “huge and overwhelming,” but began by looking into COYOTE v. Roberts, a lawsuit brought in Rhode Island to decriminalize sex work in that state. “Back then, the enforcement was primarily against women, not against men, so basically it was a gender discrimination lawsuit,” said Doogan. The case was dismissed, but helped her understand what a lawsuit would look like in order to be considered.
“I started looking for attorneys and trying to talk to people about a lawsuit, and it was falling on a lot of deaf ears,” said Doogan. “And then, I was lobbying with the Free Speech Coalition, and I was with them up in Sacramento talking about the case, and the president of their board said, ‘Oh, you need to speak to Louis Sirkin.” After that, ESPLERP board members pooled their money to fly Sirkin out to San Francisco. “He was thrilled to do it,” said Doogan. “He’d been looking to do this lawsuit for a long time.”
First, ESPLERP brought the case to U.S. District Judge Jeffrey White in Oakland. Judge White struck the case down. But, then, on October 19, when Sirkin argued the case before the 9th Circuit, the judges were singing a different tune. In fact, Judge Carlos Bea said “Why should it be illegal to sell something that is legal to give away?” Perhaps this comment signals that now is the time to bring this case.
Doogan argues that criminalizing sex work violates our right to privacy -- the same argument that was made in the groundbreaking Lawrence v. Texas case, which decriminalized sexual relations between people of the same sex. “People should be able to charge for [sex], and people should be able to pay for it,” said Doogan. “And prostitution is a prolific activity, and it continues today, so all these laws against it don’t really work anyway.”
But the Attorney General, in the motion to dismiss the lawsuit, held that the lawsuit is not about criminalizing sex, but criminalizing the commodification of sex. Whereas Doogan argues that the case is about privacy, the Attorney General argues that it is in fact about the right to sex work. “Once the liberty interest at stake is properly framed as the right to buy and sell sex, it is clear that substantive due process does not protect it,” the motion reads. “No court has recognized sex work or its solicitation as a fundamental right or liberty that is ‘objectively, deeply rooted in this Nation’s history and tradition.’”
Worse, these enforcement efforts can provide cover for harassment. Doogan explained that, once, a friend and a colleague of hers performed oral sex on an undercover officer for at least three minutes before several other officers burst in on her, guns drawn, videotaping her naked.
Yet another reason to decriminalize sex work would be ending the stigma against sex work, and the ensuing harassment. Doogan herself was once watched closely by her landlord, who she says “staked out” her apartment for about six months in order to try to catch her bringing her sex work business home. But the harassment doesn’t stop there. Doogan had a friend who was sexually assaulted in her home and cooperated with rape crisis centers in order to collect evidence for a rape kit. The crisis center then shamed her for being a sex worker, and refused to process the rape kit. The attacker was set free from jail.
Ironically, Doogan and her friend ended up ensuring the processing of the rape kit by speaking to Nancy O’Malley, Alameda District Attorney, who was at the time supporting legislation that would charge strip clubs a fee that would be then given to rape crisis centers. The extreme steps that this woman had to go through to get a rape kit processed are indicative of a culture at large that shames all women when they come out with sexual assault stories.
Doogan hopes this case could effect a national change -- and she’s optimistic that the case will ultimately favor ESPLERP. “Going to the federal courts made more sense, because then there are going to be a lot more people who are going to be positively impacted by a positive ruling,” she said. “And then, people can use our brief to challenge any sex work charges.”
She believes there’s no reason an unbiased judge wouldn’t see her point of view. With a laugh, she added: “In capitalist America, you can charge for everything.”