Problems with legalisation of sex work in the world. Research from India

With Belgium granting sex workers parity in labour rights, it prompts us to reconsider the future of sex work in the Indian context. While the idea of legalising sex work is frequently debated in Indian academia, we often overlook that legalisation is not the ultimate goal for sex workers in India.

Decriminalisation remains the only viable solution, especially in a country like India. Many intellectuals argue that decriminalisation is merely a preliminary step leading to legalisation. However, such perspectives often fail to account for the complex realities and challenges faced by sex workers on the ground.

This two-part series traces the legalisation and decriminalisation of sex work around the world and the legal and social issues thereof. In Part 1, we concentrate on legalisation of sex work.

What does legalisation of sex work mean?

At first glance, the concept might seem too progressive for a country with a rigid framework. However, the underlying assumption is that the State perceives sex work as inherently problematic, necessitating regulation through laws.

Legalisation often involves zoning restrictions for sex work, issuing exclusive sex worker identification cards, mandatory periodic health testing and periodic renewal of licences. Licences are often managed by police and the judiciary, elected municipal authorities, or independent specialist boards.

Businesses or workers without the necessary permits are subject to criminal penalties. It also includes limits on the number of sex work establishments and restrictions on advertising, reflecting a controlled and monitored approach rather than genuine acceptance.

Understanding legalisation of sex work: A global perspective

Queensland, Australia

Selling sex is legal under restrictive conditions in Queensland, Australia, such as working independently as a private worker (without sharing premises) or in a licenced brothel, while all other forms, including street-based sex work, are illegal.

Buying sex is not criminalised, but brothels must be licenced and comply with strict regulations. Workers in licenced brothels have a legal duty to be sexually transmitted infection (STI)-free, effectively creating mandatory testing every three months. There is no mandatory registration for sex workers, but regulations are considered overly restrictive, preventing alignment with other industries. Full decriminalisation has not been achieved.

Turkey

In Turkey, sex work is legal but heavily restricted. To work legally, sex workers must be women, Turkish citizens, unmarried, and employed in registered brothels. All other forms of sex work are illegal. Buying sex is not criminalised, but organising or managing sex work outside registered brothels, including providing space or encouraging sex work, is illegal.

Workers in registered brothels face mandatory registration, genital exams every two weeks and HIV/STI testing every two months. Regulations are highly restrictive, with most sex work occurring illegally. Sex work is not recognised as legitimate employment, nor is it decriminalised with limited regulation.

Greece

The regulation of sex work in Greece is governed by Law 2734/1999, originally introduced in 1834 following a syphilis outbreak as a public health measure. Under this law, sex workers are required to undergo mandatory medical testing every 15 days for STIs, every month for syphilis, and every three months for HIV.

Those who test positive are prohibited from working. Brothel assistants must also obtain licences, meet specific criteria such as being over 50 years old, possessing legal residency and undergoing medical tests. However, many brothel staff avoid licencing due to fear of being officially associated with sex work businesses or because they lack legal residency documentation.

Legalisation often involves zoning restrictions for sex work, issuing exclusive sex worker identification cards, mandatory periodic health testing and periodic renewal of licences.

Cisgender women in brothels often rely on assistants for safety, whereas male sex workers and those working in other settings typically do not.

Street-based sex workers in Athens face routine harassment, including arrests and fines ranging from €200 to €300 per instance, resulting in debts often exceeding €2000, which are nearly impossible to pay. Trials for these offences are conducted without proper legal representation, often relying solely on police testimony, leading to arbitrary arrests.

Male street-based sex workers are generally not fined but may be arrested for other reasons, such as drug-related offences or migration violations. Transgender sex workers report feeling safer in recent years due to police efforts to protect them from violence.

Migrant sex workers face unique vulnerabilities, including a lack of information about their rights, such as access to translators during legal proceedings and the challenges of obtaining licences due to high taxes, minimal benefits and the scarcity of legal brothels. These factors leave them exposed to exploitation and abuse.

While sex work is technically legal in Greece, restrictive regulations compel many to operate illegally. Legal work requires registration, professional certification, regular medical exams and employment in licenced brothels, with street-based sex work and independent operations deemed illegal.

Married women are explicitly prohibited from registering as sex workers. The regulatory framework imposes burdensome requirements, such as zoning restrictions and mandatory health checks, while failing to recognise sex work as legitimate employment. This creates a system that is neither decriminalised nor supportive, leaving sex workers highly marginalised and excluded.

Germany

In Germany, selling sex is technically legal but heavily regulated at the local level. Authorities in different cities impose restrictions on where and how sex work can occur, and violations can result in fines or imprisonment. While a few areas such as Berlin allow sex work relatively freely, most cities enforce stringent regulations, and in some places, sex work is effectively prohibited.

Recent laws require sex workers to register with authorities to work legally, and brothels may only hire registered workers, leaving unregistered sex workers operating illegally.

Buying sex is not generally criminalised, but clients can face fines if caught in prohibited areas. Brothel-keeping is legal but subject to strict licencing and registration requirements under newly adopted laws. Sex workers must renew their registration every two years and attend mandatory counselling sessions with social workers as part of the process.

There is no mandatory HIV/STI testing, but sex work is still highly restricted, with regulations often treating it as an ‘immoral practice’ or a ‘public order’ issue at the local level. Although federal law recognises contracts between sex workers and clients, sex work is far from fully decriminalised or regulated equitably, and it remains largely illegal in many parts of Germany.

Austria

In Austria, selling sex is legal but only under specific and varying conditions across provinces. In the most restrictive province, sex work is only permitted in registered brothels, but since no brothels have been registered, it is effectively illegal. In other areas, such as Vienna, street-based sex work is allowed under strict conditions regarding location and time. To work legally, sex workers must register with the authorities, typically the police.

Buying sex is not criminalised, but organising or managing sex work is partially restricted. Employing individuals as sex workers is illegal, as they must operate as self-employed. However, registered brothels exist in some provinces, making organising legal in those areas. In provinces without registered brothels, organising or managing sex work remains criminalised.

Registered sex workers must undergo mandatory health testing every six weeks for STIs and every 12 weeks for HIV and syphilis. Registration is also compulsory and varies by province, requiring involvement with the police or health departments.

Despite these regulations, sex work is not fully recognised as legitimate employment, though the Supreme Court upholds contracts between sex workers and clients as enforceable. The regulatory framework remains overly restrictive and burdensome, and sex work is not decriminalised with limited regulation.

Switzerland

In Switzerland, selling sex is legal, but street-based sex work is heavily regulated, with designated zones where it is permitted. Operating outside these zones can result in fines. Some cities such as Zurich have introduced special facilities for street-based sex work, such as “sex boxes”, but these are reportedly underutilised, leading many sex workers to operate illegally.

Buying sex is not criminalised, and brothel-keeping is legal, though licencing requirements are often burdensome, making it challenging for small businesses or sex worker collectives to operate brothels.

In Austria, selling sex is legal but only under specific and varying conditions across provinces.

There is no mandatory HIV/STI testing, but registration is required to work legally. Permits are issued by authorities after verifying residence status, health insurance and other criteria.

Despite being legal, sex work is not fully recognised as legitimate employment, and restrictive regulations create a two-tiered system where many sex workers operate outside the legal framework. The approach falls short of decriminalisation with limited regulation.

Netherlands

In the Netherlands, selling sex is legal, but local authorities have significant control over how sex businesses operate, leading to varying regulations across municipalities. This decentralised approach results in some sex workers being criminalised if they cannot or choose not to comply with these rules.

In most municipalities with mandatory licencing, licences are required for activities such as operating sex clubs, escort agencies, erotic massage parlours, sex cinemas and window prostitution (which is outright banned in several municipalities). Street-based sex work is allowed in only a few areas, while indoor sex work often requires a licence.

However, even in municipalities with licencing requirements, there are restrictions to prevent indoor sex work from resembling a business. Unlicenced activities, such as commercial home-based prostitution and street sex work outside designated zones, remain illegal.

Buying sex is not criminalised. Organising or managing sex work is legal but subject to strict licencing requirements, with some municipalities enforcing zero-tolerance policies, effectively banning sex work through stringent conditions.

There is no mandatory HIV/STI testing or registration, as previous attempts to introduce registration failed. Despite legalisation, the regulatory framework is highly restrictive, creating a two-tier system of legal and illegal sex work. This means that sex work is neither fully decriminalised nor regulated in a supportive manner.

In Uruguay, selling sex is legal but only in licenced brothels or designated sex work zones.

Uruguay

In Uruguay, selling sex is legal but only in licenced brothels or designated sex work zones. Buying sex is not criminalised. Organising or managing sex work is legal, but brothels must be regulated and licenced, with local authorities having the power to determine where brothels can be located.

There is mandatory HIV/STI testing for those working legally, and sex workers must register to work. Sex work is recognised as legitimate work, and sex workers are entitled to social security protections. However, sex work is not fully decriminalised and is instead regulated under a system of regulationism.

Bolivia

In Bolivia, selling sex is legal, but sex workers must register to work legally. Buying sex is not criminalised. There are no specific laws against organising or managing sex work.

To work legally, sex workers must undergo health check-ups every 15 days. Registration is mandatory, and once registered, police cannot arrest sex workers. However, the regulations are considered overly restrictive and do not align with other forms of work. Sex work is not recognised as legitimate employment, and it is not decriminalised, but instead regulated.

Peru

In Peru, selling sex is legal, but it is regulated. Sex workers must follow regulations, including mandatory health checks, registration and working in a licenced brothel. Street-based sex work is illegal, and most sex workers operate illegally.

Buying sex is not criminalised. Brothels are legal if licenced, and organising or managing sex work is not criminalised if done within the licencing framework. Sex workers must carry a health certificate and undergo regular testing to work legally. Registration is mandatory for legal sex work.

Ecuador

In Ecuador, sex work is legal only when conducted in licenced indoor establishments. Selling sex on the streets exists in a legal grey area, and police frequently target street-based sex workers with harassment and arrest. Indoor establishments are also subject to police raids to enforce licencing regulations.

Many sex workers operate without a licence or health card and are fined when caught by the police. Buying sex is not criminalised. Brothels face fines for employing unlicenced sex workers, though it is unclear whether other laws exist targeting the organisation or management of sex work.

Police disproportionately apply laws against loitering and vagrancy to sex workers. Mandatory HIV/STI testing is required for sex workers who comply with licencing rules, with medical check-ups every 8–15 days and specific tests for HIV, syphilis, chlamydia and herpes at regular intervals, for all of which the workers must pay.

Registration is mandatory to work legally, and sex workers must present medical certificates to obtain a licence. The regulations are considered overly restrictive and are not in line with other types of work. Sex work is not officially recognised as legitimate work, and it has not been decriminalised with limited regulation.

When having a detailed conversation with a sex worker in India, it becomes clear that legalisation in India could create its own set of challenges.

Bonaire

In Bonaire, selling sex is legal but subject to restrictive conditions. Organising or managing sex work is not criminalised; owners of establishments are legally allowed to run sex businesses and are required to pay the government for a permit to hire sex workers. Sex workers, in turn, pay the owner to rent rooms.

Mandatory HIV/STI testing is required, with sex workers needing weekly check-ups. Additionally, there is a mandatory registration process for sex workers to work legally.

Taiwan

In Taiwan, sex work is only legal within designated red-light districts, but since the law was amended in 2011 to allow these districts, no local authorities have set any up, making sex work effectively illegal. Proposals were made in 2017 and 2020 to establish red light zones in Taipei and Changhua County, but there is no evidence that these were implemented.

Buying sex is criminalised, though it would be legal within the designated zones if they existed. Similarly, organising or managing sex work would also be legal in these zones, but since none have been created, it remains illegal. There is no mandatory HIV/STI testing or registration for sex workers, as no red-light districts have been established to regulate such activities.

The regulations are overly restrictive, as local authorities are not required to create red-light districts and can refuse to do so, keeping sex work illegal. While sex work could theoretically be regulated, it remains highly stigmatised, and local authorities are reluctant to implement laws that would normalize it. Sex work is not recognised as legitimate work, and it has not been decriminalised with limited regulation.

Problems in India

When having a detailed conversation with a sex worker in India, it becomes clear that legalisation in India could create its own set of challenges. Zoning laws, for example, would make sex work illegal outside designated zones.

Additionally, requiring every sex worker to obtain a card significantly impacts those working, particularly in northern India, where many are home-based and live with their families.

The card, which needs to be renewed periodically, can be difficult to obtain, especially for migrant sex workers from other states or countries, making it hard for them to complete the documentation process.

This requirement also violates their confidentiality, making them vulnerable to family ridicule if their card is discovered, especially for home-based sex workers who live with their families and children.

Furthermore, given the notorious reputation of the police in India for mistreating sex workers, the authorities responsible for issuing and inspecting these cards could abuse their power, demanding excessive bribes and sexual favours.

Text: Vaibhav Singh is a final-year law student at the Campus Law Center, University of Delhi. Additionally, he works as a legal trainer focusing on laws related to transgender individuals and sex workers.

Published on 24^th of January, 2025

Source portal theleaflet.in