Sex Work Can’t Buy Human Rights
The ECtHR’s Intersectional Blindness in M.A. and Others v. France
In a recent decision on the merits in M.A. and Others v. France, the European Court of Human Rights (ECtHR) held that French legislation criminalizing the purchase of sexual acts did not violate the rights of 261 female and male sex workers from various nationalities. Following a decision on admissibility in 2023 that has been hailed as a landmark, the July 2024 decision retreats into the Court’s traditional interpretative toolbox of European consensus and (procedural) margin of appreciation, applied in a restrictive manner. While a similar proposal to adopt a criminalization strategy vis-à-vis those purchasing sexual services has also been debated in Germany in recent weeks (see critically Ole Lueg in this blog), I argue that the ECtHR decision does not only demonstrate blindness towards the rising sensitivity towards intersectional grounds of discrimination in human rights law but also contradicts recent proposals on “a human rights-based approach to sex work” promoted by several UN organs and the Council of Europe (CoE)’s Commissioner for Human Rights.
The Regulation of Sex Work and the French “End Demand” Model
The regulation of sex work remains one of the most controversial and widely debated topics not only in Europe but also globally. While one can distinguish between various levels of regulation between full legalization of selling and purchasing sexual acts and full criminalization, countries have adopted a variety of models following decriminalization (no criminal penalties for sex work), abolitionism (brothels and other organized activities are illegal), or neo-abolitionism (criminalization of the purchase of sexual acts) strategies.
In April 2016, France adopted Law no. 2016-444 “aiming to strengthen the fight against the prostitution system and to support prostituted persons” following intense political debates. The law includes a range of measures that aim to facilitate the transition of sex workers out of prostitution and the support of victims of human trafficking through specific state programs. More controversially, it includes an amendment of the French Penal Code which punishes “soliciting, accepting or obtaining” sexual acts in exchange for remuneration or other types of advantages with 3,750 EUR. In case this sexual act is purchased from someone who is a minor or has a particular vulnerability, such as an illness, disability, or pregnancy, the fine amounts up to 45,000 EUR (in 2021, updated to up to 75,000 EUR). France thus adopted a neo-abolitionist model aiming to reduce prostitution by targeting the demand side of it. It is commonly known as the “Nordic model” and practiced in Norway and Sweden, among others.
Sex Workers at the Strasbourg Court
In the case M.A. and Others v. France, 261 sex workers claimed that Law no. 2016-444 violated their rights under Articles 2, 3, and 8 of the Convention, in particular “that this measure seriously endangers the physical and mental integrity and the health of persons who, like themselves, engage in prostitution, and that it radically infringes their right to respect for their private life and that of their children” (para. 73, all translations by the author).
This is not the first case that sex workers brought before the Strasbourg Court. Earlier decisions found that while there is no European consensus on sex work regulation, forced prostitution is incompatible with human rights and dignity (V. T. v. France) and forced labor within the meaning of Art. 4 (S.M. v. Croatia) ECHR. The ECtHR also found that state authorities cannot deprive trafficked sex workers of their income under their right to be prohibited from slavery and forced labor guaranteed in Art. 4 (Krachunova v. Bulgaria). In contrast to those earlier cases, M. A. and Others v. France concerned persons who willingly and voluntarily engaged in lawful prostitution. In detailed testimonies, from which the Court included extracts in the decision, the applicants alleged that due to the criminalization of clients, they have to work under much more perilous circumstances often taking more severe risks in attracting clients, which impacted their physical health (e.g. through increased infections with HIV) and mental health. In the words of applicant S.T., “[t]his law is slowly destroying my autonomy, my security and my life” (para. 6).
A central issue in the 2023 ECtHR decision on admissibility in the case concerned the victim requirement of the applicants (see also the analysis by Elisabeth Greif). The Fifth Section of the ECtHR under President Ravarani held in June 2023 that, while the law in question does not govern their conduct, according to the applicants, “it generates a situation whose effects they directly suffer in the enjoyment of their rights” (para. 42 seq.). Similar to the recent climate change cases, this demonstrates an increased sensitivity in the interpretation of the victim requirement under Art. 34 ECHR at the Court.
Intersectional Blindness
While the decision on admissibility was thus declared a “landmark” for the rights of sex workers, the 2024 decision on the merits adopts a different approach. In particular, the Court decided “in view of the wording of the complaint” and “the nature of the measure whose consequences are challenged” to only examine the complaints of the applicants under Art. 8 ECHR, disregarding the very serious effects of Law 2016-444 on their right to life and freedom from torture and inhuman treatment the sex workers allege. The Court goes into a detailed comparative overview of sex work legislation in 41 Convention states (paras. 68-72) and a range of third-party submissions, including Sweden and Norway in support of the French model, 13 NGOs in favor, and 30 NGOs against the French legislation, as well as a group of 26 NGOs that report in detail over the mixed evaluations of similar legislation in the Netherlands, in particular stressing its negative impact on migrant sex workers (paras. 94-135).
Applying the proportionality assessment of Art. 8 ECHR, the Court finds that there exists no European consensus on this highly sensitive moral and ethical question, thus giving state authorities a wide margin of appreciation in regulating sex work (paras. 147-150). In particular, the Court points out that the intense French parliamentary debate that led to the adoption of the law demonstrates that the legislator has taken great care in balancing the respective demands in line with a wide procedural margin of appreciation (paras. 158-160). The Court also questioned the alleged causality of negative the effects of the law on the applicants’ lives as the difficulties and risks of engaging in sex work had existed even before the law (paras. 154-5). As the French authorities struck a fair balance of the competing interests at stake and the State did not exceed its margin of appreciation, the Court found that there has been no violation of Art. 8.
Among the criticism of this decision, I want to highlight two points:
First, the judges adopt a selective application of interpretative principles that are focused on the broader ethical question rather than the case before the Court. As Dimitrios Kagiaros and Inga Thiemann have analyzed in detail, even adopting the Court’s traditional interpretative toolbox a different result would have been possible. For instance, the Court’s European consensus analysis focused on the general regulation of sex work, not on the more specific question of the criminalization of purchasing sex, which only a minority of ECHR state parties adopt.
Secondly, the decision is characterized by a significant intersectional blindness vis-à-vis the realities of the lives of sex workers. Intersectionality, a concept originally emerging in US anti-discrimination law (see Crenshaw), highlights how different aspects of an individual’s identity – including race, gender, social class, and sexuality – can intersect, thus creating unique experiences of privilege or oppression. For instance, while the Court highlights that the law aims at protecting minors as potential victims of human trafficking, it does not discuss the severe implications on migrant sex workers, a concern that was repeatedly raised in the third-party submissions. Multiple studies have shown that migrant sex workers are underreporting violence against them, both by clients as well as police authorities, and that end-demand legislation creates even more additional barriers for them to access safety and justice. This intersectional blindness continues in the Court’s emphasis on parliamentary debates of the law as evidence of a “fair balance”. Sex workers, in most cases, do not have the same political and legal capacity to advocate for their rights in the parliamentary process (see also Easterbrook-Smith or Pitcher), i.e., their representation is very limited and cannot be compensated by the fact that concerns of their health and safety risks were discussed and (some) improvements included (see para. 160). The decision is thus in line with recent scholarly analyses of the ECtHR that found that the Court is exceptionally reluctant to discuss or refer to intersectional grounds in its majority opinions (see Theilen).
A Human Rights-Based Approach to Sex Work
Throughout the decision, the ECtHR conceives sex workers primarily as victims of human trafficking in line with the French legislation. This contradicts recent developments in human rights law and policy that attempt to construct a human rights-based approach to sex work which is sensitive to the agency of sex workers and their lived experiences including intersectional vulnerabilities. In the words of then-CoE Commissioner for Human Rights Dunja Mijatović, “[s]uch an approach must ensure sex workers’ protection from violence and abuse, their equal access to health and other social rights, as well as their rights to private life and to participate in public and political life.” In particular, this rights-based approach should focus on ensuring that sex workers can exercise all their rights, including political rights. Additionally, the CoE Human Rights Comment centers intersectionality, for instance, that “[a]ll policy measures must consider the distinctive exposure of sex workers to discrimination, including on intersecting and multiple grounds, such as ethnic origin, sex, gender, sexual orientation, gender identity, gender expression and sex characteristics, migration status and disability.” As analyzed before, this runs counter to the ECtHR’s intersectional blindness.
However, the decision demonstrates a more nuanced understanding of state obligations vis-à-vis voluntary sex workers, marking progress from earlier decisions. For instance, even after the Court found no violation, it emphasized that “it is up to national authorities to keep the approach they have adopted under constant review, particularly when it is based on a general and absolute ban on the purchase of sexual acts, so as to be able to nuance it in line with the evolution of societies, European and international standards in this field” (para. 167). In particular, the latter seems to move in a direction opposite to the ECtHR’s current jurisprudence.
Importantly, both the CoE Human Rights Comment from February 2024 and the UN Guidelines on the Human Rights of Sex Workers from March 2024 reject criminalizing the purchase of sex. The criminalization of sex workers, their clients, or third parties, in their perspective, obstructs the right to health, exposes sex workers to violence, and has severe intersecting impacts on the most vulnerable, such as migrant sex workers. They argue that decriminalization does not equal the lowering of standards regarding human trafficking. Instead, laws that criminalize exploitation, human trafficking, or violence against sex workers should be strengthened (see also the debate on Belgium for a possible model of full legalization in Europe). This proposal of a human rights-based approach to sex work thus stands in stark contrast to the decision in M.A. and Others v. France.
