Sex Workers’ Unions: Providing Protection or Institutionalizing Exploitation?

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Spain is the third-largest market for prostitution in the world (behind Thailand and Puerto Rico), and according to a study by the University of Comillas, one in five Spanish men admits to having “recently” paid to have sex. Nearly 40% say they have done so at some time in their lives. At the time of the study, paid sex equated to approximately 0.35% of the country’s GDP, which today is over €4,350 million.

In the 1980s, the majority of sex workers in Spain were of Spanish origin, but by the early 2000s, an overwhelming percentage were migrants. TAMPEP (the European Network for the Promotion of Rights and Health Among Migrant Sex Workers) estimates that between 80% and 90% of prostitutes in Spain are from Latin American countries such as Ecuador, Colombia, and the Dominican Republic, poorer EU countries like Bulgaria and Romania, and African states such as Nigeria. Current estimates put the number of women who engage in prostitution in the country at well over 400,000.

Prostitution in Spain is (More or Less) Legal

Although Spanish former President has publicly called prostitution illegal in more than one speech, prostitution is not regulated in Spain, meaning that the Spanish Penal Code doesn’t explicitly address it at all. It was, however, decriminalized in a court ruling in 1995, which means that it is not illegal to sell sexual services to another person. However, pimping or acting as a proxy between prostitute and client is illegal, as is any other method of profiting off of another person’s sexual act.

Article 188 of the Spanish Penal Code says:

“Whoever causes a person of legal age to engage in prostitution or to continue to do so, with the use of violence, intimidation or deception, or by abusing a position of power or the dependency or vulnerability of the victim, shall be punished with a prison sentence of two to four years and a fine from 12 to 24 months. Gaining profit from the prostitution of another shall incur the same penalty, even with the consent of that person.”

Legal licenses are granted to clubs that may function as brothels, but prostitutes there may not be directly hired by the club’s owner. In order to get around this strange legal loophole, the women are made to “rent” the rooms they work out of at the brothel, as if they were freelancers who simply needed a place to set up shop. That way the brothel owners can claim that they are simply renting out space for personal use, and that they do not control nor profit off of whatever acts happen to be performed within those rooms.

In other words, the women are considered to be under their own employ even though what they do is not considered to be work. (If you’re shaking your head at the circular logic, you’re not alone.) But because prostitution is not considered to be a job, they therefore can claim no legal recognition, benefits or protections.

In spite of the “alegality” of selling sex, certain autonomous regions have passed their own regulations—notably, Catalunya—to try to discourage the proliferation of the so-called world’s oldest profession, including fines for street prostitution. These regulations don’t ostensibly target the prostitutes so much as aim to punish their clients; however, according to various investigations by the press and non-profit organizations, the practical result has been that the women were fined much more frequently than their johns.

During the coronavirus pandemic, brothels could file for an ERTE just like any other legal business. This allowed them to pay their employees full or partial salary and avoid going bankrupt while the restrictions prevented them from opening. At Paradise, an infamous brothel in the Catalan border town of La Jonquera, 69 employees were awarded partial pay while the brothel was closed during the pandemic, but none of these 69 people were sex workers because sex work isn’t technically considered to be a job. They were left to fend for themselves.

The Controversy: Can Sex Workers Unionize?

How is it possible that all parties involved selling sex enjoy legal protections of one kind or another except for the sex workers themselves?

The Organization of Sex Workers (Organización de Trabajadoras Sexuales, or OTRAS) was formed in August 2018 to try to remedy this exact issue. It was the first fully independent union formed by sex workers in Spain and was officially registered as a trade union with Spain's Labor Ministry, which approved and accepted its registration. They are a member of the ICRSE (the International Committee on the Rights of Sex Workers in Europe), which describes itself as “a network of sex worker organizations and their allies that work together to support the development of national and international law, policy and practice, which respects and upholds the human and labor rights of sex workers throughout Europe and Central Asia.”

However, abolitionist groups brought a court action against the Ministry of Labor and OTRAS, which resulted in OTRAS' statutes being annulled on the grounds that there can be no employment contract for prostitutes, and therefore they don’t comply with the legal description of "workers." In addition, allowing the union to exist would be to “recognize the act of procurement [or pimping] as lawful.”

Three years later, the Supreme Court reversed the decision, stating that OTRAS’ statutes are “in line with the law” and that sex workers “have the fundamental right to freedom of association.” This summer, the Spanish Supreme Court recognized the right of prostitutes to create a workers’ union, as long as they work for themselves and not on behalf of someone else (i.e., their pimp).

This apparent pivot in legal opinion apparently had to do with certain details contained in the original ruling versus the information contained within the appeal. The original ruling referred both to “self-employed” prostitutes as well as those who work on behalf of third parties, which is explicitly illegal, whereas the appeal referred only to prostitutes who work on their own behalf. The Supreme Court responded to this assertion by stating that the legality of prostitution or an associated activities depends on the legislative power of government and not on the wording of a statute of a union. (The newly approved statutes the union also include other categories of sex workers, such as gentlemen’s club hostesses, erotic dancers, and pornographic film actors.)

However, the Supreme Court’s ruling creates as many questions as it does answers. It allows self-employed prostitutes to join the union, yet it’s not possible to register as a sex worker in the Spanish Social Security system. It is also unclear with whom the union would negotiate labor terms, as the law doesn’t recognize a brothel owner or pimp as the prostitutes’ legal employer.

Some women's organizations cheer the Supreme Court’s recent decision, saying that a sex workers’ union will give these women greater control over their lives. Others argue against it, saying that the Court’s decision further entrenches the status quo of a system which perpetuates the victimization of women.

Those in Favor: Defending Sex Workers’ Rights 

OTRAs has had a number of allies in its fight to legal recognition.

Associations like the Committee of Support for Sex Workers (Comité de Apoyo a las Trabajadoras del Sexo, or CATS) argue that the existence of sex workers and their role in the industry is a fact and ask that prostitution be recognized as a legitimate economic activity. CATS coordinator, Nacho Pardo, explains that the word “worker” is particularly important in their definition of what a prostitute does.

"In the capitalist society we live in,” he says, “having one’s work recognized for what it is the only way in which a person can qualify for and claim labor rights and basic citizenship rights."

Other like-minded organizations such as Putas Libertarias del Raval and Putas Indignadas have taken to the streets in protest to try to make their voices heard. They are highly critical of anyone tries to equate feminism with the eradication of prostitution, calling abolition “radicalism disguised as feminism.” Their argument is that both abolitionists and reformists are feminist, as they are all working to improve the position of a highly vulnerable group of women.

In a press release, representatives from Putas Libertarias posit that the prostitute is not a victim, as she may accept or reject an offer to engage in a transaction, and not a criminal according to the law. Therefore, they deserve protection under the law. They also say that the possibility of danger or sudden violence exists not only the sex trade, but in any other job that involves interacting with the general public, such as working as a cashier in a supermarket.

These organizations claim that the system criminalizes and stigmatizes them—even though what they are doing is not illegal—when all they aspire to is self-management, solidarity and mutual support. They believe that legitimizing prostitution as a job in the eyes of society as well clarifying its position under the law will make sex workers’ lives safer.

Others judge the ruling from purely a legal perspective. Jesús Lahera, a professor who teaches labor law at the Complutense University of Madrid, calls the decision a “ruling in favor of freedom of association.” Lahera explains that a self-employed person can join a union, but that unions can’t be be created by self-employed or freelance workers alone. Therefore, he says, the ruling is widening the path to unionization in general.

Those Against: The Abolitionists

The factions fighting to make prostitution illegal in Spain feel just as strongly.

In 2020, nearly one hundred academics, artists, writers, jurists and former prostitutes signed a manifesto in Barcelona demanding the abolition of prostitution in Spain. The signatories included film director Iciar Bollain, philosopher Victoria Camps, retired prosecutor Carlos Jiménez Villarejo and the former director of the Spanish Women’s Institute, Marina Subirats.

Sylviane Dahan Sellem, the founder of the initiative, spoke at a press conference that presented the manifesto to the Federation of Neighborhood Associations of Barcelona: “As prostitution is not technically recognized as a legal profession by Spanish law, it can’t be unionized,” she said. “If a union like OTRAS exists, it gives a false impression to unemployed women that prostitution is a legitimate way to enter the labor market.”

She points out that, it is explicitly illegal to be in the employ of a third party while selling sex, there is no “work” occurring as defined by Spanish labor law. This means that the appeal filed by the union before the Supreme Court after the 2018 ruling could not be based on the recognition of the prostitutes’ laboral status, but rather on the individual right of each person to unionize.

The manifesto rejects the concept of the existence of two types of prostitution, calling this idea deceitful and untrue: forced prostitution, such as in a case of human trafficking, and voluntary prostitution, when a woman freely chooses to sell her body as her profession, and which should therefore be susceptible to regulation like any other economic activity. The manifesto points out that an overwhelming percentage of sex workers are women living in poverty, and that there is no proof that these women have chosen prostitution over some other, viable professional alternative.

“[The question of legitimizing a sex workers’ union] is a matter of deciding whether we consider it legitimate to perpetuate the male privilege of access to the body of a woman through economic means," it says.

Núria González is a lawyer specializing in labor law and workers’ rights, a member of the Feminist Abolitionist Platform of Catalunya, as well as the President of the L’Escola AC, which is the non-profit association that challenged the Spanish Ministry of Labor’s right to allow the OTRAS union to exist, resulting in the initial ruling against the union in 2018.

In an interview with Catalunya Plural, González said, “If we want to keep women from being put in the position of having to sell her body, the State has to be abolitionist. What cannot happen is that public administrations sanction the existence of brothels, prostitution and sex tourism.”

She believes that prostitution could be wiped out completely if three measures are applied in the long term: “First of all, the prostitute’s client has to be singled out by society as a bad person. This would require an expensive local awareness campaign. Second, the Penal Code must be reformed to attack all sources of financing. Not only is the pimp a criminal; so is the owner of a brothel. And finally, it is necessary to invest in reintegration programs for women who were formerly prostitutes.”

In the short term, González recommends proactive policies that focus on penalizing the clients, such as the 2017 initiative by the Gavà City Council to fine men who tried to pick up women offering their services on the shoulder of the C-32 highway. The measure significantly reduced prostitution in the area—possibly in part due to the economic consequences of their crimes, and possibly because the fines were mailed to the men’s homes with detailed explanations of their offenses.

How Does Spain’s Laws Compare to the Rest of Europe?

The laws regulating the sex trade vary widely in Europe, from completely illegal to pay for sexual acts—for example, in Sweden, Northern Ireland, Iceland and France, where the client is prosecuted but the sex worker is not—to fully legal. In the Netherlands, Germany, Switzerland, Finland and Norway, the thought is that by licensing sex work and by having brothel owners pay into social security, it will increase safety, improve working conditions and decrease stigmatization and abuse for the women.

Many EU countries (like Spain) have opted for something in between, with laws that allow the exchange of sex for money, but that prohibit making money from another person’s transaction. In other words, pimping, running a brothel or otherwise acting as a proxy or middleman is illegal.

The 2018 study by the United Nations Office on Drugs and Crime shows that human trafficking is on the rise in Europe—and that the sex trade, while not the only motivation for human trafficking, plays a major role. In 2017, Spanish police identified 13,000 women in anti-trafficking raids, stating that at least 80% of them were being exploited against their will by a third party.