Newsflash: sex workers also have dignity

Do sex workers have the same inherent human dignity guaranteed in our Constitution for everyone else living in South Africa – despite the fact that our Parliament in its “wisdom” has declared sex work illegal? In the case of Kylie v Commission for Conciliation, Mediation and Arbitration the Labour Court in effect found that they did not. Now on Appeal Judge Dennis Davis (Zondo JP and Jappie JA concurring), used some nifty legal footwork to find otherwise.

The Labour Court found that Kylie, who worked at a massage parlor and was dismissed without a fair hearing, was not entitled to protection against unfair dismissal as provided in terms of section 185 (a) of the Labour Relations Act (LRA) because it would be contrary to a common law principle that courts “ought not to sanction or encourage illegal activity”.

Cheadle AJ invoked the principle ex turpi causa non oritur actio which “prohibits the enforcement of immoral or illegal contracts” to justify this decision. He argued that if a contract is illegal, courts must regard the contract as void and hence unenforceable. As the Constitutional Court found in the much criticized case of S v Jordan that Parliament had the right (if not the duty) to criminalize sex work, it would be untenable to allow the application of the LRA to sex workers as this would, in effect, undermine the principle of the Rule of Law.

The Labour Appeal Court argued that in dealing with this question one should not start by looking at the law of contract. Instead, one should focus first on the provisions of the Constitution, most notably section 23 of the Constitution which guarantees for “everyone” the right to fair labour practices.

Davis argued that the word “everyone” in section 23(1) of the Constitution refers to all people in the country and is thus “supportive of an extremely broad approach to the scope of the right guaranteed in the Constitution”. This did not mean that sex workers enjoyed exactly the same rights as everyone else. After all, engaging in sex work (and now, making use of the services of sex workers) is a criminal offense and obviously this means that sex workers have fewer rights – even labour rights – than individuals not engaging in unlawful activity to earn a living.

Nevertheless, sex workers may, in certain circumstances, enjoy protection under the LRA. This is because the LRA, read in the context of section 23, is very broad in scope and applies not only to workers who has a legally valid contract with employers but also to workers where an employment relationship (if not a legal contract) exists between the worker and the employer.

Summarising this argument, Judge Davis focused on the inherent human dignity of sex workers and wrote:

As sex workers cannot be stripped of the right to be treated with dignity by their clients, it must follow that, in their other relationship namely with their employers, the same protection should hold. Once it is recognised that they must be treated with dignity not only by their customers but by their employers, section 23 of the Constitution, which, at its core, protects the dignity of those in an employment relationship, should also be of application.

But would somebody like Kylie be entitled to any legal relief – despite the fact that she engaged in unlawful activity? Would a court not be undermining the Rule of Law if it provided a remedy for the unfair dismissal of a worker whose work entailed engagement in illegal activity? Were a court to recognise a claim based on the constitutional right to a fair labour practice, would the court not be sanctioning or encouraging the prohibited activity?

Well, Davis seemed to have managed to skirt this problem (taking this into account when deciding on what remedies might be available to someone like Kylie) by focusing – once again – on the inherent human dignity of sex workers. He noted that the express purpose of the LRA “is to advance economic development, social justice, labour, peace and the democratisation of the work place”.

In itself, this set of principles can be traced to section 23 of the Constitution. In particular, section 23(1), which provides that everyone has the right to fair labour practices, was designed to ensure that the dignity of all workers should be respected and that the workplace should be predicated upon principles of social justice, fairness and respect for all.

The Court found that where a sex worker forms part of a vulnerable class by the nature of the work that she performs (one could add that not all sex workers are female) and the position that she holds and she is subject to potential exploitation, abuse and assaults on her dignity, there is no principled reason why she should not be entitled to some constitutional protection designed to protect her dignity. This protection has been “operationalised” by the provisions of the LRA.

This does not mean that all the remedies of the LRA would be available to a sex worker who has been unfairly dismissed by an employer. For example, it would be against public policy to reinstate a sex worker – even if she could show, on the evidence, that her dismissal was unfair. Compensation for a substantively unfair dismissal may also be inappropriate. It would be against public policy, one assumes, because it would undermine the Rule of Law by “endorsing” illegal activity.

But a court could award monetary compensation for a procedurally unfair dismissal because this kind of compensation is independent of the loss of illegal employment. In other words, so argues Davis, a court will not be enforcing the unlawful contract and would not be undermining the Rule of Law if it provided compensation for the procedurally unfair dismissal. Where a sex worker has been dismissed and this dismissal was procedurally unfair her dignity would be exploited or abused. Public policy based on the foundational values of the Constitution does not deem it necessary that these rights to a procedurally fair dismissal be taken away from a sex worker for the purposes of the Act to be properly implemented.

This is a clever argument, but is it convincing? I suppose it depends on one’s view of the reach of the rights in the Bill of Rights as well as on whether one sees sex workers as a vulnerable and exploited group or as a social menace. Perhaps because I believe sex work should not be criminalized and because I endorse the implicit assumption of the Davis judgment that everyone – regardless of who they are or what work they do – has an inherent human dignity that cannot be taken away, I find the argument plausible.

Some judges and lawyers fail to understand that the principle that every human being has an inherent human dignity, which forms the basis of the rights in the Bill of Rights, does not refer to a subjective dignity that one can “lose” because of what one did for a living or who one is. Whether one is a sex worker or a politician (some would say these activities are rather similar in nature), one retains an inherent human dignity.

Just because a moralistic legislature (influenced by the prevalent Christian nationalist ethos) purports not to like the work one does or because one is forced by circumstances to do a job that is frowned upon by some, one does not lose one’s inherent dignity and hence one does not lose the protection of the Bill of Right. If one is treated unfairly the law should therefore protect you – if it is at all possible.

The larger question remains though: why do we criminalize sex work? Some argue that sex work is inherently demeaning to women while others argue that it is immoral. The latter argument is obviously not sustainable in a constitutional democracy as the criminal law should not be used to impose the morality of some on society as a whole. The former argument seems to me fundamentally hypocritical. We allow men and women to do work that some would find just as (or more) degrading than sex work. We do this because we are too lazy or high-minded to do these jobs ourselves.

Thus, the law does not prohibit anyone from cleaning a toilet, removing other people’s rubbish, becoming a criminal lawyer defending rapists and murderers or becoming a politician – despite the fact that many in society might see these jobs as degrading or immoral. Why single out sex workers for criminal sanction? I suspect we single out sex workers because of the deeply conservative and moralistic views about sex that our society pretends to endorse.

By condemning sex workers we can feel good about ourselves and can feel morally pure – even if our own sexual attitudes and behavior does not comply with the prescriptions imposed by religious teachings and by societal attitudes. The ban on sex work therefore seems rather hypocritical and self-serving.

The Law Reform Commission is currently investigating the regulation of sex work, but no matter what proposals it may make, I fear that our legislature will not agree with Davis’s judgment which reminds us that sex workers have an inherent human dignity that should be respected. Parliament may well do so not because its representatives themselves live lives of chastity, but because they need to condemn others in order to deal with their own internalized prejudices about sex and sexual morality.