Last 25 July, the European Court of Human Rights did not find any violation of the right to private life in a case lodged by 261 sex workers on the grounds that French law penalising their clients eventually affects their own human rights. This judgement adds a further layer to a complex legal framework that tackles sex work on multiple levels. This decision underscores how sex work regulation is fragmented, with institutions like the EP focusing on moral arguments (see the 2014 and 2023 resolutions) while the CJEU centres on market-driven logic (Belavusau 2017). It reveals the need for a more cohesive legal approach within the EU.
Against the backdrop of this legal-discursive tension, we would like to build our reflections on three considerations. First, there is a specific dimension to the study of sexuality and its normativities which should not be conflated with insights coming from gender-based perspectives (Rubin 1998; Butler 1994). Second, sex and sexuality are not only indispensable elements in the EU legal construction (Belavusau 2017, 430), but they are also underused lenses in the analysis of the integration process (Graham 2009). Third, a queer critique is both necessary and fruitful for a fuller understanding of the EU context, provided that its tenets are appropriately translated and recontextualised (Beger 2000). It is on these premises that we propose that the intersection of queer feminist theory and EU law offers a unique lens through which we can critically examine the legal and social frameworks that govern sex work. We want to build on this approach by virtue of its capability to disrupt systems, denaturalise categories, deconstruct worldviews, society formations, and power arrangements, not only as much as sex, sexuality, and the body are concerned, but also insofar as the relations to desire, the market, production and social reproduction are taken into account. In this analysis, we seek to critically examine the multifaceted nature of sex work through the lens of queer feminist methodology, ensuring that we do not simplify or romanticise the complex realities faced by sex workers. Our goal is to deconstruct the ingrained sexual normativities that often permeate discussions around sex work and to situate these conversations within the larger frameworks of bodily autonomy, sexual exploitation, empowerment, and liberation. We aim to articulate how these themes can serve as a foundation for challenging existing regulatory structures surrounding sex work. Ultimately, we wish to envision progressive futures for sex workers and advocate for inclusive and transformative approaches to social justice within the European Union context.
ABOUT QUEER FEMINIST EPISTEMOLOGY AND METHODOLOGY
Before dwelling deeper into the subject, we should define the scope of what we consider queer feminist theory and approaches. While both queer and feminist traditions are diverse, multipolar, a simplistic differentiation can be found between the two inasmuch as the queer move, since its inception, marked a theoretical deviation from feminism and towards anti-essentialist approaches to identity, categories as well as qualified interests in sex and sexuality as autonomous fields of enquiry (De Lauretis 1991; Butler 1994). Furthermore, surely both feminist and queer scholars address issues of power and systems of oppression but, with social justice in mind, their approaches differ. Feminist scholars tend to emphasise social justice by focusing on modernist ideas of experience and agency within systems of inequality. In contrast, queer theorists reject the modernist view of rational actors and instead aim to highlight how discourse shapes and organises power, aligning with poststructuralist goals (Crawley and Plakhotnik 2023).
With these broad differentiations in mind, what is the epistemological significance of queer feminist perspectives, such as the one we propose, when applied to the study of (EU) law and legal discourse? We can identify three aspects: they challenge dominant normativities by resorting to the standpoint of marginalised subjectivities; thus, they question traditional frameworks of knowledge and the means of its production, hence also unearthing the biases that are embedded in legal systems and processes of legal subjectivation; subsequently, they introduce intersectionality and anti-essentialism as epistemological tools to make sense of the entanglements of systems of power with legal regimes and their coalesced production of subjects as well as social, economic, political formations.
When it comes to their methodological distinctiveness, queer feminist approaches offer critical deconstruction not only based on the reading of the letter of the law, but also through the examination of language, policies and practices of law. As a methodological practice, they promote bottom-up, community-centred methods that value the inclusion of marginalised voices and their perspective on the effects of law on its subjects. Last but not least, they welcome transdisciplinarity as a heuristically fruitful approach. In this sense, borrowing from different social sciences and challenging legal formalism, queer feminist approaches have the capability to provide more holistic understandings of social justice issues.
Briefly put, by deconstructing the ways in which the law reinforces and perpetuates heteronormativity, patriarchy, and other forms of oppression, this approach aims to envision radical alternatives for fairer, more equitable legal systems, imagine queerer legal scapes that better reflect the diversity of human experiences, and ultimately adhere to the realisation of social justice and liberation for all.
THE STATE OF AFFAIRS: SEX WORK IN THE EYES OF EU LAW
Proceeding with the analysis, what do the current affairs of sex work and its regulation look like in the European Union? We argue that legal regimes regulating sex work in the EU are frequently framed in a manner that reinforces heteronormative and cisnormative standards, eventually marginalising people who do not fit conventional social categories. Applying queer feminist principles, we can uncover the power dynamics embedded in a fragmented legal framework that governs this industry and that produces limited or flawed perspectives on social justice. To do so, we focus on EP’s institutional interventions, the CJEU case law, EU (gender) equality law and EU consumer law.
The regulation of sex work across the EU features a pronounced divergence between different national regimes and an ambivalent, limited overall role of the EU and its law. As far as the national level is concerned, great normative variety can be recollected through six main regulatory schemes: abolitionism, where prostitution is legal and unregulated except for organised activities like brothels and pimping; neo-abolitionism, which makes it illegal to buy sex and for third parties to be involved, but legal to sell sex; decriminalisation, which removes all criminal penalties for prostitution; legalisation, where prostitution is legal and regulated; Prohibitionism, where prostitution is entirely illegal; and local variations, where the legality of sex work depends on local laws. Each approach has different implications for the people involved and reflects varying societal attitudes towards sex work.
While such regulatory dissonances provoke negative consequences as soon as national borders are crossed, the EU can only intervene on the matter in limited circumstances, namely when sex work results in issues that regard fundamental rights, human trafficking, the internal market, EU equality law or, in some instances, EU consumer law. Arguably, the division of competences between member states and the EU in this field and member states’ prerogative to morally define limits to their markets concur, per se, in shaping the problematic aspects of related legal interventions. In any case, we propose that, by analysing a series of instances of EU soft law, legislation, and case law, one can evince how different approaches to sex work (prostitution, in EP’s terms) fall short of reflecting and supporting radical, queer(ed) conceptions of social justice.
Returning to the institutional, legal-discursive tension mentioned at the beginning, two different dead-ends surface. Adopting the EP’s lenses based on the two above-mentioned resolutions dealing with prostitution, if, on the one hand, the resolution adopted in 2023 pays increased attention to the embeddedness of this phenomenon amongst broader social, power dynamics (see especially paragraphs M, P, R, U, and V), on the other, the EP still proposes an overall criminalisation of prostitution on the premise that it consists of an undesirable externality of the socio-economic system the exit from which should be supported and encouraged through “pathways out” (see paragraphs V, 38, 45, and 46). If one also notices the ambivalent position assumed by the EP towards the market, simultaneously referred to as the negative term to describe the violent aspects of prostitution derived from its systematic organisation (see paragraph I of the 2014 resolution and 8 of the 2023 resolution) and the ‘good’, ‘normal’ system from which women should not be forcefully subtracted and to which they should return (see paragraph 44 of the 2014 resolution), one could wonder: “pathways out”…where? If prostitution, in EP’s terms, is a socially fabricated system of violence, what ultimate good will come from ‘including’ women prostitutes in an untouched, unaddressed socio-economic system? Should we eliminate prostitution to solve social justice, or should we tackle social justice in order to purge sex work from its exploitative, violent, oppressive downturns?
Turning to the CJEU’s viewpoint, while the relevant caselaw is quite dated and still needs to elaborate on incoming digital challenges, it is clear that a focus on the working of the internal market has led the Court to adopt a functional, ‘neutral’ stance towards sex work in its transboundary, EU dimensions. Nevertheless, are we to believe, building on the acknowledgement that norms and categories structuring sexuality are inextricably linked with the capitalist system (Evans 1993), that such an approach provides a solution for the protection of sex labour and, more generally, possesses emancipatory potential (cf. Belavusau 2017, 420, 426)? Is the market the way to go from prostitution to social justice?
Finally, in dealing with EU equality law and consumer law, the shortcomings of these pieces of legislation as far as social justice is concerned are easily detected. EU (gender) equality law is not only, arguably, limited in scope and only promoting formal equality (Schiek 2016; Sciarra, Davies and Freedland 2004; Croon-Gestefeld 2017), but it is also fundamentally binary, thus categorically excluding, or significantly hampering access to, certain subjects from its protection (Espinhaço Gomes 2019). Alternatively, consumer law in the EU is primarily designed to protect consumers, ensuring they receive fair treatment in commercial transactions. When applied to sex work, this framework tends to prioritise the rights of clients over those of sex workers, reducing sex work to a mere commercial service (Tjon Soei Len 2015). This consumer-centric approach not only often fails to address the exploitation and violence that sex workers face, but also tends to overlook systemic inequalities linked to class, gender identity and gender expression, race, and sexuality.
QUEER CONSIDERATIONS, QUEER(ED) PERSPECTIVES ON SEX WORK
Reclaiming the emancipatory aims that we have stated above, is it eventually the case that, by applying a queer feminist approach, we can strip sex work of the overburden of sexuality-driven normativities and retain its main features that point toward social justice? If the problem with sex work derives from exploitation, systemic (gender) violence, and flawed consent, is sex work fundamentally, constitutively that different from labour in a capitalist system? And if, instead, the problem with sex work derives from the market, from its profit-oriented working, is there any other alternative beyond market-driven legal evolutions or consumer law?
Building on these provocations, a queer feminist perspective shifts the focus towards the rights and autonomy of sex workers. It recognises sex work not just as a transaction, but as a complex interplay of desire, exploitation, remuneration, and empowerment. Queer feminist theory challenges the traditional binaries—such as the voluntary versus coerced sex work or the victim versus agent narratives—that often oversimplify the realities of sex workers’ lives (Hardy and Sanders 2015). Following a queer feminist method, one can argue that sex work can be a site of both oppression and resistance, shaped by a variety of intersecting factors like economic necessity, social stigma, and legal restrictions. It is against this background that ‘queering’ the dynamics of sex work involves rethinking the relationships between bodies, sexuality, desire, exploitation, remuneration, and empowerment in ways that challenge the dominant narratives upheld by, among others, consumer law or morally driven, normative takes on this field of law.
Accordingly, one way to queer the legal dynamics of sex work is to take a distance from both the commodification of bodies and sexuality within the industry, which reduces sex workers to objects of consumption and reinforces patriarchal and capitalist systems that exploit their bodies for profit, and morally burdened regulatory interventionism, that severs the downsides of the commercial performance of sex from broader labour issues including exploitation.
A queer feminist approach proceeds beyond consumer law and reimagines the relationship between desire, compensation, and consent. A queer feminist approach emphasises the possibility for sex workers to be active agents with the right to control their bodies and define their labour terms. In other words (running against the grain here), we argue that, since the exploitation is not unique to sex work but is a feature of all labour under capitalism (Steedman 1981; Whyte 2019; Tzouvala 2020; Thrift 2006; Harvey 2005), then the framing of sex work, with a vision of social justice in mind, should be in the context of labour rights and intersectional class struggles.
QUEERING THE LAW – TOWARDS SOCIAL JUSTICE
The legal discourse we are aiming at, based on a queer feminist approach and in connection to a labour rights-, class struggle-oriented perspective, builds on decriminalisation of sex work. Subsequently, this legal vision proceeds towards the extensions to sex workers of workers’ rights, ranging from participation in trade unions to access to social benefits such as healthcare and retirement plans. Thirdly, our vision sides with queer feminist theory’s calls for rethinking, reshaping social and cultural attitudes toward sex work, eventually removing social stigma and challenging dominating moralistic, paternalistic views.
It bears clarifying that envisioning such a queer(ed) legal discourse does not entail, per se, a refusal to assess other evidence-based solutions to problematic aspects of the market of prostitution. In this sense, we stress once again that our intervention does not intend to neglect the exploitative, violent, oppressive features which burden sex work today. On the contrary, if our aim is to strip the legal discourse on sex work of super-imposed sexuality-based normativities and reconnect it to the broader discourse on social justice, then our call for a queer, labour-oriented re-imagination of sex work should be understood as consequential to this intent, and not as a panacea tackling exploitation, human trafficking, and systemic violence too.
In any case, we would like to propose that some lessons can indeed be learnt from the application of a queer feminist approach to the field of sex work. We argue that a queer understanding of sex work can operate as the catalyst of new coalitional politics, minority alliances, and intersectional imaginaries. Throughout this blog post, we have tried to show how, in pursuing social justice, sex work can (and should!) be understood as part of broader class struggles in the capitalist system. This goes to show that queer feminist approaches, unlike how certain (neo)liberal discourses depict them, do not only address “cultural” issues. Sex, sexuality, and gender are also about labour, class, and material struggles. And sex work, with queer feminist eyes, can be one of the mediators of a necessary (re)coalescence between queer and materiality, sexuality and class, in the path for fuller, more daring visions of social justice.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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