Applying a Gender Equality Standard to the Regulation of Prostitution

Most feminist literature is divided on how to approach prostitution (some writers see it as sex work that should be normalized, some as an inherently violent and exploitative practice that should be abolished). Connected to these positions, many normative debates about the response to prostitution concentrate on a legislative overhaul of current systems and either propose legalization (the ‘Dutch model’) or the criminalization of demand (the ‘Swedish model’). Based on the finding that many national responses to prostitution fall in between the two models and the recognition that not all jurisdictions might choose a legislative overhaul in either the Dutch or the Swedish direction, this paper tries to construct a gender equality-based standard that could be used to improve the well-being of prostitutes especially in the regulatory regimes ‘in the middle’. It argues that the treatment of clients and prostitutes needs to be compared, and that any regime in which the treatment is asymmetric to the detriment of the prostitute is indirectly discriminatory on the basis of sex. It is argued that while the client and the prostitute are sufficiently similar, in being parties to the same transaction, in order for a requirement of formal equality to apply (i.e. they should be at least treated equally – symmetrically), they are also sufficiently different, in terms of social meaning, risk of harm, and de facto inequality, to justify an asymmetric treatment benefiting the prostitute.