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LGBTQ+ people overrepresented in the field, while underserved and sometimes not fully understood by those providing legal help

By Derek J. Demeri in New Jersey Lawyer Magazine

DEREK J. DEMERI is a graduate of Rutgers Law School, Class of 2020 and a co- founder of the New Jersey Red Umbrella Alliance, the state’s only organization dedicated exclusively to the rights of sex workers.

Historically, the connection between the LGBTQ+ community and sex workers has always been strong. It was transgender sex workers of color like Marsha P. Johnson and Sylvia Rivera who ignited and led the Stonewall Riots. When the HIV/AIDS epidemic began, and since then, LGBTQ+ sex workers have been at the forefront, often

unnoticed, of the public health response. Even today, many of those who advocate for LGBTQ+ equity, often without any compensation, rely on sex work as a source of income.

For a number of reasons, LGBTQ+ people are overrepre- sented in sex work. For some LGBTQ+ people, rampant employment discrimination means they are excluded from forms of employment other than sex work. For youth who are homeless, a population which is disproportionately LGBTQ+, engaging in sex work for food, housing, or income may be the only means of survival. Additionally, LGBTQ+ people experience higher rates of poverty than their cisgender or heterosexual counterparts and may contribute to the need to seek out alternative sources of income.

While “sex work” has been defined many different ways, the term, as used here, should be understood broadly as the exchange of sexual services for something of value. This could include prostitution, domination or submission work, escorting, sugar babying, adult film performance, exotic dancing, web-camera performance, erotic massage, and many other activities. Some types of sex work are criminalized, such as prostitution, and other types are not, such as exotic dancing or pornography.

The concept of sex work is as much a term that can be defined as it is a term of identity.1 Importantly, the people that engage in sex work are as diverse as our society is, irrespective of class, race, gender, or other social classifications. At its core, sex work is just another classification of people’s labor.

Recent public discourse has used the terms sex work and sex trafficking interchangeably. This should be avoided to prevent poorly crafted policy with staggering human costs. Human trafficking has a legal definition under the law of New Jersey, which partly incorporates the definition of prostitution along with several other elements or factors. Furthermore, to suggest that all sex workers are “forced” into sex work is a gross misrepresentation of the reality and denies people the autonomy to self-identify their own situations. As used here, sex work talks about one’s labor rather than the mindset or agency of a person involved.

Engaging in sex work requires a minimum of two par- ties—the one performing the labor and the client of those services. Occasionally, it can involve third parties that facilitate the performance of services, such as drivers, security, photographers, management, bookkeepers, website designers, and so on. There is nothing inherently violent about the involvement of third parties and, in many cases, can increase the safety of the sex worker.

This article will attempt to provide a brief overview of some of the civil legal needs of sex workers under New Jersey law. Of course, there are many other legal issues that sex workers experience, particularly in relationship to criminal4 or federal law, which this article does not address.

Sexual Harassment

Sexual harassment on the job is an ongoing problem for many sex workers—likely due to the myth that all sex work- ers either invite sexual assault because of their line of work or that it is impossible for the law to distinguish between the labor of sex work and sexual harassment.

The prevalence of the myth that sex workers cannot be raped recently came to New Jersey’s attention when Superior Court Judge John Russo made disparaging remarks to an exotic dancer. The dancer was seeking a restraining order against someone who was violent and who had raped her. Russo, in turn, suggested the dancer should have known how to stop someone from having sex with her because of

The New Jersey Supreme Court has recognized through New Jersey’s Law Against Discrimination that sexual harassment in employment is prohibited. The court has identified two cognizable claims for sexual harassment. First, under the quid pro quo theory of recovery, sexual harassment can occur when “an employer attempts to make an employee’s submission to sexual demands a condition of [their] employment.” Secondly, under the hostile work environment theory of recovery, sexual harassment occurs if a “plaintiff… allege[s] conduct that occurred because of [their] sex and that a reasonable [person] would consider sufficiently severe or per- vasive to alter the conditions of employ- ment and create an intimidating, hostile, or offensive working environment.”

Under either theory of recovery for sexual harassment, the issue sex workers encounter is with the requirement of “conditions of employment.” Because of the myth that sex workers cannot be raped, the argument goes that sexual harassment is a condition of employment and, therefore, nothing new is altered or demanded.

However, sexual harassment against sex workers and their labor are two dis- tinct concepts. When a worker agrees to perform sex work, they are agreeing to a specific scope of specified sexual behavior. Often, those limits are negotiated prior to accepting to perform any sex work.

When those agreed-upon conditions are violated, then sexual harassment likely has occurred. Of course, a sex worker that has agreed to sexual services can always change their mind; forced sexual activity is still rape.

Two examples can illustrate the point about workplace conditions. First, sup- pose there is an adult film performer that is an employee of a film studio. A producer calls in the employee and says that, if the employee wants to perform in the producer’s next film, then they will have to have sex with the producer. This would be a classic case of quid pro quo because the producer is making sexual favors a condition of employment. The condition did not exist before because the performer is specifically hired to appear in adult films, not to have sex with a producer off-camera.

As another example, consider an exotic dancer who is an employee of a dance club. The club has gained a repu- tation for allowing its patrons to physi- cally grab and touch its dancers, even without their consent. The club man- agement has the ability to police the patron behavior but willfully allows the behavior in the interest of profit. Here, the patron culture is occurring because of the dancer’s sex and has altered the conditions of employment because the sex worker is specifically hired to per- form, not to be touched. Due to the severity of the groping, it would be classified as a hostile working environment.

If the employer hires LGBTQ+ sex workers, then those sex workers likely have additional burdens. As members of the LGBTQ+ community, one additional burden is the risk that they may experi- ence discrimination when seeking to protect their labor rights simply because of their sexual orientation or gender identity. The same is true for sex workers of color, differently abled sex workers, and all the other ways that people expe- rience discrimination in our society.

Furthermore, LGBTQ+ sex workers may experience a pressure from others, or even a sense of guilt, to avoid expos- ing the employer. Employers that actual- ly hire LGBTQ+ sex workers are much more of a novelty compared to employ- ers of cisgender, heterosexual sex work- ers,8 so LGBTQ+ sex workers have less leverage to negotiate better working conditions. That loss of leverage can translate into a fear among workers to maintain the status quo at all costs.

Additionally, LGBTQ+ sex workers have the burden of having to explain the difference between their sexual labor, sexual orientation, sexual practices, and gender identity to gatekeepers with access to recourse for their rights violations (i.e, administrators, lawyers, etc.). These gatekeepers are likely individuals with little cultural competency in LGBTQ+, or sex worker, issues and may become resistant to helping because of difficultly understanding how all these issues interplay. That same resistance is less likely to exist for heterosexual, cisgender sex workers.

It is important to note that these pro- tections apply in full force only to employees. The law of sexual harassment as applied to independent contractors is not as comprehensive.

Misclassification and Wage Theft

Due to a variety of factors, sex workers are particularly vulnerable to having their services misclassified as independent contractors rather than as employees.

In 2015, the New Jersey Supreme Court adopted what is known as the “ABC test” to determine whether a worker is an employee or an independent contractor for purposes of New Jer- sey Wage Payment Laws and Wage and Hour Laws.10 Under the ABC test, a worker is presumed to be an employee unless the employer can satisfy each of the three prongs. First, the worker must be “and will continue to be free from control or direction over the performance of such service, both under [their] contract of service and in fact.” Second, the “service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed.” Third and lastly, the employer must show the worker “is customarily engaged in an independently established trade, occupation, profession or business.”

While there are many sex workers who do legitimately work as independent contractors, misclassification has a significant effect on a sex worker’s entitlement to various protections and benefits, such as paid sick leave, overtime, wage and hour laws, and the right to organize under the National Labor Relations Act. If a sex worker is found to be misclassified, then New Jersey law may entitle them to back pay and punitive damages, among other possible remedies.

Employers have been incentivized to misclassify employees to save on payroll costs and may mislead sex workers into accepting the lesser protections through false promises of flexibility, such as with working hours. For LGBTQ+ sex work- ers, it may mean being forced to accept less than ideal working conditions because of a fear of getting blacklisted in an industry much more limited than for sex workers catering to heterosexual, cis- gender markets. This magnifies the problem that LGBTQ+ sex workers often do not have the recourse to navigate between employers.

A sex worker may believe that the benefits of being an independent con- tractor to outweigh reporting misclassi- fication. This view might be based on the idea that they have a more flexible work schedule. However, if the employ- er is unable to satisfy the ABC test, then this was nothing more than a percep- tion as the worker ultimately lacked control over their work. A sex worker should be properly informed of all the risks and benefits to properly compare being an independent contractor versus an employee.

Moreover, sex workers are susceptible to wage theft, regardless of their status as an employee or independent contrac- tor. Wage theft occurs when a worker is not properly reimbursed for services performed. Transgender women of color, undocumented women, and LGBTQ+ youth are particularly vulnerable to the problem of wage theft because their marginalization in society contributes to higher susceptibility to workplace exploitation.

If a sex worker is classified as an employee, then New Jersey’s Wage & Hour Laws apply, and the Department of Labor and Workforce Development is well equipped to handle enforcement of wage theft issues. Unfortunately, and despite the growing fissuring of work- places over the past several decades, cor- recting wage theft for independent con- tractors is more challenging. Contract and criminal law may be the only avenues to recovery in that situation.

When sex workers experience wage theft, it is important to understand the act for what it can also be—rape. Since it may involve sexual penetration or sexual contact induced through coercion, the laws of sexual assault and criminal sexual contact are likely also relevant.

Whether a sex worker labels wage theft as rape often depends on the per- spective of the worker themself and the underlying circumstances. As legal counsel, it is important to navigate these conversations with particular sensitivity and be prepared to give appro- priate counsel, outlining all available remedies based on the particular facts.

Discrimination Against Sex Workers

Sex workers, and those assumed to be sex workers, have historically faced a wide variety discrimination, both in the law and society. Ultimately, the discrimination uses one’s status as a sex worker to perpetuate social oppression. For for- mer sex workers, it means their former job follows them for life as a permanent scarlet letter.

Books have been written on why dis- crimination occurs against sex workers. Ultimately, discrimination is undoubt- edly rooted in the gendered nature of sex work. As homo- and transphobia are rooted in gender discrimination as well, this discrimination is particularly insidious for LGBTQ+ sex workers.

Discrimination against sex workers can occur in employment, housing, business transactions, and public accommodation—all areas covered by New Jersey’s Law Against Discrimination. To recover under the LAD, one cause of action is through a disparate treatment claim, meaning the person was intentionally discriminated against because of their protected status. A second way to recover is through a disparate impact claim, meaning a facially neutral policy disproportionately affects members of a protected class.

Notably, sex work is not an expressly protected class under the LAD while “sex” is. Be that as it may, policies that discriminate against sex workers arguably have a disparate impact on women because of the disproportionate number of women involved in sex work and would therefore fall under the LAD’s protection. Similar arguments can be made using the LAD’s protections for “affectional or sexual orientation” and “gender identity or expression” since LGBTQ+ people are overrepresented in the sex trades. Although the viability of such claims has yet to be litigated, this is an emerging area of civil rights waiting to be explored.

Domestic Violence and Restraining Orders

Domestic violence is an issue that continues to deeply affect the people of New Jersey, and sex workers are not immune to this epidemic. Domestic violence can have the effect of keeping people in sex work longer than intended or forcing them into sex work to begin with; however, sex work can also provide people with the financial independence necessary to leave an abusive relationship.

Regardless of why someone in a domestic violence situation is engaging in sex work, it is more helpful to compe- tently provide for their legal needs rather than aiming to get someone “out of the lifestyle.” The fact that the perpetrator of domestic violence pays for a sex worker’s services or facilitates the performance of a sex worker’s services as a third-party (i.e., a manager or driver) does not mean the laws and services available to domestic violence victims do not apply.

One available remedy for a sex work- er experiencing domestic violence is to get a restraining order. There are three elements one must meet to get a final restraining order issued in New Jersey. First, there must be a predicate act (such as assault, stalking, or harassment) com- mitted against the sex worker. Second, and discussed further below, the sex worker must have a qualifying relation- ship with the person against whom they are seeking the restraining order. Third, as courts have inferred, the plaintiff must show that a restraining order is “necessary…to prevent further abuse.

Understanding the requirements for a qualifying relationship is important when representing sex workers. A quali- fying relationship could be a current or former spouse, a current or former household member, someone that has or is expecting a child with the sex worker, or someone with whom the sex worker has a “dating relationship.”

The term dating relationship, statutorily left undefined, has led to some judi- cial clarifications that can be relevant to sex workers. First, courts use a factor test as a guidepost to determine whether a dating relationship exists and it includes factors such as the nature and frequency of interactions, parties’ expectations, and the publicity of the relationship. In a later case, the Appellate Division held that someone paying for their time as an escort does not automatically preclude a finding of a dating relation- ship. Additionally, another court found that private relationships with sporadic sexual encounters still fall under the category of dating relationships.

To illustrate this, consider the case of hypothetical Dwane, a 20-year-old who recently started working as an escort to support himself in college. His parents had found out he was bisexual and stopped providing him any financial support. Dwane had a client he saw on and off for roughly four months until his client started becoming possessive and repeatedly attempted to see Dwane outside the confines of their arranged pay-per-services. Dwane attempted to sever communications after the former client would show up at his apartment and school but was unsuccessful.

Under this scenario, Dwane would likely qualify for a restraining order if he wanted one because: (1) there is a predi- cate act of stalking, (2) they have a qualifying dating relationship because they regularly engaged in intimate activity with the expectation that their arrangement would continue, and (3) the restraining order is necessary to prevent further stalking. Beyond the law however, Dwane is likely to experience further barriers to accessing justice both as some- one who is LGBTQ+ and as a sex worker.

Identifying what someone’s legal needs and wants are informs whether they should get a restraining order. Despite the best efforts of domestic violence advocates to prevent this, filing a legal proceeding against another can permanently alter interpersonal relationships and has the potential to increase violence in certain circumstances. Your client knows their situation—and their adversary—best.

Conclusion

Assessing the legal needs of sex work- ers requires a unique approach that may differ from other clients. Competency includes understanding the social ostracization that sex workers endure, dis- cerning the boundaries between consent and exploitive work conditions, and honoring the sex worker’s self-identifi- cation. For LGBTQ+ sex workers, it also means being cognizant of the added layer of marginalization that they might be experiencing. These principles sit at the core of an attorney’s duty of diligence when representing a client.

Regrettably, seeking access to legal services for sex workers has historically been more than challenging. Despite experiencing a long history of oppres- sion, sex workers often fall outside the scope of services that nonprofits offer, even if a nonprofit works for the benefit of LGBTQ+ communities or sex trafficking victims. Many private attorneys that offer pro- and low-bono services have also failed to recognize the enduring need for more competent services and do not take legal requests to support sex workers seriously. Even if an attorney wanted to help, a belief may exist that nothing could be done.

This discussion should facilitate attorneys to think critically in these respective areas of law and to re-concep- tualize how the law interacts with sex workers in their own areas of practice.

Sometimes, good intentions can worsen conditions for sex workers, such as with legislative efforts to prevent human trafficking. That is why working with sex workers, especially community organizations, is critically important to ensure the law is advanced in a way that respects the needs of the community.

Justice for all, a guiding principle for the legal field, is something that must be worked toward. Sheroes such as Marsha P. Johnson and Sylvia Rivera showed the world that during the Stonewall Riots. In the continued march toward LGBTQ+ equity, embracing sex workers is a neces- sary requirement, not merely a utopian dream.

Endnotes

  1. This is the same phenomena for words that are used to describe sex- ual orientation and gender identity. For example, most would define “gay” to mean someone who is mostly attracted to someone of the same gender; however, there are many people who fit this definition but do not identity as gay. That is why people, including sex workers, must be given the space and oppor- tunity to define their own experi- ences and identity as they would like.
  2. See, e.g., Lura Chamberlain, FOSTA: A Hostile Law with a Human Cost, 87 Fordham L. Rev. 2171 (2019).
  3. See N.J.S.A. § 2C:13-8.
  4. The legal needs of sex workers a related to criminal law go well beyond the criminalization of prostitution in New Jersey. It can include seeking expungements, having warrants cleared, or the other ways that sex workers are often criminalized, such as under New Jersey’s HIV and sexually transmitted infection criminalization laws. See N.J.S.A. § 2C:34-5.

     5. Amended Complaint at 1–4, In re Russo, No. ACJC 2017-225 (N.J. Aug. 21, 2018).

6. See N.J.S.A. § 10:5-12(a); Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993).

7. See generally Ann C. McGinley, Harassment of Sex(y) Workers: Apply- ing Title VII to Sexualized Industries, 18 Yale J.L. & Feminism 65 (2006).

8. Consider the brothel industry in Nevada. In the industry’s 40-plus years of existence, only one cisgen- der male sex worker has ever been hired (and, when he was working, he exclusively only saw cisgender female clients). Homophobia and the industry’s desire to cater exclu- sively to heterosexual, cisgender males are undoubtedly part of the reasons for this. See, e.g., Tracy Quan, Male Prostitution Comes to Nevada, Guardian (Jan. 20, 2010), theguardian.com/commentisfree/cif america/2010/jan/20/male-prostitu tion-nevada-brothel.

9. Compare J.T.’s Tire Services, Inc. v. United Rentals North America, Inc., 411 N.J. Super. 236 (App. Div.
2010) (finding that a claim of quid pro quo sexual harassment applies to independent contractors), with Axakowsky v. NFL Productions, No. 17-4730, 2018 WL 5961923 (D.N.J. Nov. 14, 2018) (finding that a claim of hostile work environment does not apply to independent con- tractors).

10. Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 295 (2015); see also N.J.S.A.
§ 43:21-19(i)(6).

11. See N.J.S.A. § 34:1A-1.18 (relying on the Department of Labor and Workforce Development for pri- mary enforcement).

12. See N.J.S.A. § 2C: 14-2 to -3.
13. See generally Melinda Chateauvert,

Sex Workers Unite: A History of the Movement from Stonewall to Slut- Walk (2014).

14. See Bostock v. Clayton County, 590 U.S. ___ (2020).

15. See N.J.S.A. § 10:5-1 to -49.
16. See, e.g., Gerety v. Atl. City Hilton

Casino Resort, 184 N.J. 391 (2005). 17. See generally Derek J. Demeri, Who

Needs Legislators? Discrimination Against Sex Workers Is Sex Discrimi- nation Under Title VII, 72 Rutgers. L. R. 247 (2020).

18. The term “affectional or sexual ori- entation” is defined by statute to mean “male or female heterosexu- ality, homosexuality, or bisexuality by inclination, practice, identity, or expression, having a history thereof or being perceived, presumed, or identified by others as having such an orientation.” N.J.S.A. § 10:5- 5(hh). Although this definition assumes there are only two gen- ders, its application should be assumed to include non-binary individuals as well.

19. See N.J.S.A. § 2C:25-19.
20. See J.D. v. M.D.F., 207 N.J. 458

(2011) (citing Silver v. Silver, 387 N.J. Super. 112, 126–27 (App. Div. 2006)).

21. Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003).

22. J.S. v. J.F., 410 N.J. Super. 611, 615 (App. Div. 2009).

23. T.M. v. R.M.W., 456 N.J. Super. 446 (Ch. Div. 2017).

24. See, e.g., Taylor N.T. Brown & Jody L. Herman, Intimate Partner Vio- lence and Sexual Abuse Among LGBT People: A Review of Existing Research (Nov. 2015), williamsinsti- tute.law.ucla.edu/wp-content/ uploads/IPV-Sexual-Abuse-Among- LGBT-Nov-2015.pdf.

25. See New Jersey Rule of Professional Conduct 1.3.