When the Supreme Court rendered a decision last month striking down Canada’s existing prostitution laws as unconstitutional, the Simone de Beauvoir Institute at Concordia called it an important feminist victory.
“The judgment bases itself on a deep and rigourous evaluation of scientific evidence and proof,” read its statement, issued immediately after the ruling on December 20. “As university scholars and as feminists, we underline the importance of basing our legal analysis, and our public policies, on facts and not on stereotypes or myths.”
Viviane Namaste, professor and Concordia University Research Chair in HIV/AIDS and Sexual Health, explains that the institute supported the court’s decision because it promised to make the legal practice of prostitution safer for sex workers.
“The evidence that the judges had to consider and had to look at, in our view, was overwhelming that in fact the laws do increase violence,” she says.
In June, the Simone de Beauvoir Institute was granted official intervenor status when the country’s top court heard the Bedford v. Canada case, which challenged the constitutionality of the country’s prostitution laws.
This allowed Concordia’s academics to advance their arguments related to the case: that prostitution in and of itself does not represent harm to women, that laws preventing public communication between sex workers and their clients inhibit the establishment of consent to a sexual activity, and that not all feminists are opposed to prostitution.
“A feminist commitment to women's autonomy would support that if a woman chooses to work as a sex worker that she be supported in her choice,” says. “The notion of choice is pretty central to feminism.”
The case challenged three specific provisions of Canada’s Criminal Code: prohibitions on bawdy houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution.
Namaste says the prohibitions force sex workers to work in isolation, and that the laws against public communication with clients prevent them from being able to consent to sexual activities.
The three women who brought the case to the Supreme Court (Terri Jean Bedford, Amy Lebovitch and Valerie Scott) are current or former sex workers. They argued that the existing regulations violate the Canadian Charter of Rights and Freedoms: women who work as prostitutes don’t have access to “life, liberty and security of the person” because the laws put them in potentially violent situations.
“This is three women who have said, ‘We want to work as sex workers, and we want to do that safely," Namaste says. “That sends a huge challenge to feminists but also to society as a whole. In discussions around the issue, people don't actually want to use that as a point of departure."
In the 9-0 decision in December, Chief Justice Beverley McLachlin wrote that the declaration of invalidity of the laws should be suspended for one year, "returning the question of how to deal with prostitution to Parliament."