Do laws criminalizing prostitution violate the Constitution? Probably. Until recently, such a proposition would have been as absurd as suggesting, in 1972, that the Constitution guaranteed a right to same-sex marriage. But cultural winds shift, social and sexual norms evolve, and political movements shape law.

The Constitution protects gay sex from criminalization, so it should protect commercial sex too. Judges’ reasons for so far disagreeing have been anchored in mischaracterizations of sex workers—in a word, whorephobia.

A variety of reinforcing factors have, of late, changed how sex workers are popularly perceived. The collapse of the pornographic film industry shuttled many former and would-be adult-film actors into escorting and webcamming, a process accelerated by the embrace of the latter in the pandemic-era gig economy. Meanwhile, multiple state and municipal bills have sought to decriminalize sex work, an effort shaped in part by the newfound political clout of an ascendant sex workers’ rights movement. This is a significant shift from the tendency, until quite recently, for sex workers to be thought of as drug-addled moral degenerates or trafficked victims. Prostitutes are increasingly cognizable as people, people who ought to have the same opportunities as everyone else: to live, labor, and love free from violence.

Despite these meaningful shifts, in most United Sates courts today, a constitutional challenge to a state’s anti-prostitution law would still be dead on arrival. However, the argument for the constitutional protection of sex work is worth expounding, not only in the hopes of appealing to a future judiciary, but also in the service of a more expansive politics of sexual freedom.

Although there are several paths to the recognition of a constitutional right to sex work, the most promising one is through Lawrence v. Texas, the 2003 Supreme Court decision holding that anti-sodomy laws (laws criminalizing anal and oral sex) violate the liberty protections of the Fourteenth Amendment. Several sex workers or sex worker collectives have challenged anti-prostitution laws in lower courts, claiming that if, according to Lawrence v. Texas, the Constitution protects gay sex from criminalization, then it should protect commercial sex too. No court has yet agreed, but the courts’ rejections have been anchored in misunderstandings of sex work and mischaracterizations of sex workers—in a word, whorephobia.

The charge of whorephobia is not an indictment of the personal beliefs or biases of judges. Rather, it is an observation that our default, stubborn cultural presumption—a presumption baked into law—is that sex workers are morally unworthy, or, worse, morally toxic. Through decades of remarkable cultural and legal transformation, gays became the beneficiaries of constitutional rights; prostitutes still are not. The Lawrence Court, in countenancing the gay plaintiffs before it, characterized them as “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”

Why should a woman’s sexual choices render her unfit for constitutional protection and unrecognizable as a rights-claiming citizen?

But how uncommon is commercial sex to the heterosexual lifestyle? And is commonality really the issue, or is “full and mutual consent”? And if, for the moment, we will admit that at least some commercial sex, some of the time, is consensual, then what privileges noncommercial sodomy over and against sex for money? How have lower courts wedged a constitutional distinction? And why, to borrow the words of late Justice Antonin Scalia, should we “not believe it”?

In what follows, I examine how courts have recently addressed, or refused to address, what I call the prostitution–Constitution question, and argue for some pathways forward that might bring us closer to a constitutional right to sex work.

We can begin by noting how often judges repeat the same mistaken claim that Lawrence v. Texas already answered the prostitution–Constitution question, and that the answer was “no.” In 2004 an Illinois state appellate court found that the “Lawrence Court specifically excluded prostitution from its analysis.” The court reiterates the point clunkily and evermore incorrectly: “Included in the conduct the Lawrence Court specifically excluded from its opinion were acts of prostitution.” Drawing on similar language, the Supreme Court of Hawaii insisted that prostitution is “expressly rejected as a protected liberty interest under Lawrence.” And the Louisiana Supreme Court followed suit: “Lawrence specifically states the court’s decision does not disturb state statutes prohibiting public sexual conduct or prostitution.”

But Lawrence v. Texas did no such thing. It did not “exclude” or “reject” prostitution from its holding, nor did it “specifically . . . not disturb” anti-prostitution laws. It simply punted on prostitution, and rightly so, because neither sex work nor sex workers were before the Court.

Lawrence v. Texas’s passage about its own limits is one of the most cited parts of the opinion:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.

In legalese, this kind of passage in a court decision is known as a dicta, words and opinions that neither directly bear on the present case nor bind future ones. The lower courts, however, have treated these dicta as prescriptive rather than descriptive, transforming “the present case does not involve . . . prostitution” into “the present case shall not be applied to prostitution.”

In so many words, the Lawrence Court said: The precise scope of this sexual liberty we are announcing is to be determined, but it minimally extends to gay sex in the bedroom. Prostitutes, exhibitionists, and polyamorists will have to have their own days in court. For lower courts to then claim the Lawrence decision precludes sex workers’ constitutional claims shirks their own interpretive responsibilities. After all, in the Lawrence decision, Justice Anthony Kennedy chastises his yesteryear colleagues for very narrowly defining the question before them as one of whether gays had “a fundamental right . . . to engage in sodomy.” Our constitutionally protected sexual liberty does not cash out as a mere right to have anal sex in one’s own house without getting arrested. So what then are the right, good, and constitutional parameters of our sexual liberty? What decisions about sex—our sexual practices, sexual partners, and the conditions of our sexual exchange—ought to be protected from state and police interference? State courts have held that Lawrence’s liberty extends to a right to fornicate (to have nonmarital sex). What makes sex for money so patently different? Why does the presence of money mean the absence of rights?

The most promising path to the recognition of a constitutional right to sex work is through Lawrence v. Texas, the Supreme Court decision holding that anti-sodomy laws violate the Fourteenth Amendment.

This is not really a point about textual misinterpretation, but rather a point about how social misperception leads to bad reading. Judges’ stereotypes about prostitution on the one hand (nonintimate, emotionless, dangerous) and noncommercial sex on the other (intimate, enduring, consensual, non-abusive, marital) enable courts to hastily write off prostitution as outside the ambit of constitutionally protected sexual liberty.

Even when courts do not flatly reject the prostitution–Constitution question from the outset, their determinations are tellingly dismissive. Here is a federal district court from Indiana: “[I]t would be an untenable stretch to find that Lawrence necessarily renders (or even implies) laws prohibiting prostitution . . . unconstitutional.” And here is the federal district court of D.C.: “Defendant stretches the holding in Lawrence beyond any recognition” (emphases added in both).

Do the courts have in mind a stretched-out woman? A woman whose sexual choices—to have sex outside marriage, to not give up sex for free—render her both unfit for constitutional protection and unrecognizable as a rights-claiming citizen-subject?

In 1993 law professor Kendall Thomas observed that, when the Supreme Court first heard a constitutional challenge to anti-sodomy laws in Bowers v. Hardwick (1986), the Court rhetorically couched its refusal to countenance that right as if the Court itself were under sexual assault by the gay appellant, Michael Hardwick. “Situating itself in the place and position of a woman, the Hardwick Court seeks to persuade readers of its institutional chastity. . . . [It] demands ‘great resistance’ to Hardwick’s attempted seduction.”

Lower courts have declared commercial sex to be intrinsically public and thus beyond Lawrence’s boundary.

If, in the 1980s, gay men were perceived “to be a threatened attack on patriarchal power,” might sex workers occupy a similar role today? By “stretching” sexual rights across the commercial/noncommercial divide, prostitutes are seen to endanger family, marriage, procreation, and gendered divisions of labor, just as homosexuals were seen to before the advent of dignified, respectable homonormativity, when gays can now just happen to be gay (sex workers cannot yet, in assimilative fashion, just happen to be sex workers).

So often we are told that prostitutes are symbols and victims of patriarchy. But what is more patriarchal: a woman selling sex, or public authorities disallowing her to do so? “People committed to gender hierarchy,” argues philosopher Martha Nussbaum, “frequently have viewed the prostitute, a sexually active woman, as a threat to male control of women.” Or as anarchist Emma Goldman wryly commented during the white slavery scare of the Progressive Era, “It is merely a question of degree” whether a woman “sells herself to one man, in or out of marriage, or to many men.” Or finally, as Venus Xtravaganza observes in Jennie Livingston’s 1990 documentary Paris Is Burning, if a married suburban woman wants her husband to purchase a new washing machine, “I’m sure she’d have to go to bed with him anyway to give him what he wants, for her to get what she wants, so in the long run it all ends up the same way.”

After the sexual revolution and second-wave feminism, the line between marriage and sex work may no longer be as vanishing as Goldman supposes or as fuzzy as Xtravaganza implies; but when states criminalize sex work and courts uphold that criminalization, women’s (and folks of all genders’) sexual choices are commandeered and confined.

As we have seen, many courts have refused to seriously entertain questions of if and how Lawrence v. Texas pertains to sex workers’ rights. But when courts have taken up the question of whether Lawrence’s liberty extends to commercial sex, or at least some forms of it, they have unilaterally concluded it does not. That conclusion is based on three interrelated arguments: first, that Lawrence’s sexual liberty is subsumed under a right to privacy, and prostitution is not private; second, that Lawrence protects intimate liberty, not sexual liberty, and commercial sexual exchange is not intimate; and third, that states have more legitimate reasons to criminalize sex work than to criminalize gay sex. All three of these arguments are spurious.


Is sex work public or private? It’s a trick question.

Lower courts have declared commercial sex to be intrinsically public and so beyond Lawrence’s boundary. Donna Williams, appealing her four-year prison sentence under Illinois’s anti-prostitution statute, “characterize[d] her conduct as private sexual activity between two consenting adults.” Prosecutors argued instead that “Williams’ activity is more aptly described as the commercial sale of sex.” By accepting and defending the state’s account, the Illinois court leans on an absolute opposition between commerciality and privacy, as if that opposition is metaphysical rather than manufactured by the court’s own reasoning.

It takes judicial hubris to declare that commercial sexual relationships are void of intimacy.

The D.C. federal district court trumpets the same note: “In contrast to the private, non-commercial activity at issue in Lawrence, the conduct . . . in this case concerns the sale of sexual acts in the commercial marketplace. . . . This activity is unquestionably both public and commercial. It does not fall within the reasoning of Lawrence.” But even if sexual acts are sold in public, they are almost always performed in private, at least in the spatial sense of indoors and hidden from others’ view. As a constitutional matter, the court is probably right: Lawrence’s liberty does not extend to commercial solicitations for sex (Lawrence’s liberty may not even protect noncommercial solicitations for anal or oral sex). But if I negotiate, in the mythical marketplace, caretaking services for my father who suffers dementia, and those very bodily, very intimate services are then performed in my father’s bedroom and bathroom at his assisted living facility, are those exchanges unquestionably “public”? Are they irrefutably “private”? And what about, more to the point, the commercial facilitation of masturbation and sex for cognitively and physically disabled persons, whether in their own residences or group homes? Surely this is “sex work” of some kind, but I would hesitate to classify such sexual services as “public.”

In her survey of sex work in Johannesburg, law professor I. India Thusi writes, “sex work frustrates [the] public-private dichotomy by making the presumably private act of sex into a public transaction.” Thusi complicates the dichotomy further still: “although the sale of sex occurs in private areas, the procurement of strangers for sexual activity is necessarily a somewhat public act. For there to be an efficient market for sex, there must be public or quasi-public spaces where strangers can purchase sex” (my emphases). Thusi’s “somewhat” and “quasi-public” qualifiers betray the ideological-turned-constitutional fiction of privacy. Is purchasing sex in a side alley in fact “public”? What about in a brothel? Online? What if you take someone home, and then, upon arrival, he asks for $20 for oral sex? What if someone takes you home and gets off on paying to service you? Is that a public, sexual exchange? Under more conventional, spatialized understandings of privacy, nearly all commercial sex is “private” if we just mean in some sort of residence or dwelling (although publicly funded or subsidized group homes for the elderly and disabled, considered above, question even this thin account of “privacy”).

Over the past several decades, both the transaction and the sex of transactional sex have been shifted indoors and online by the effects of urban gentrification, vice policing, and the Internet. Drawing upon the work of sociologist Elizabeth Bernstein, journalist Alison Bass notes that “by 2001, only about 2 percent of American sex workers were streetwalkers.” Ironically, as both Bass and Thusi illustrate, the policing of “public” sex helped “privatize its geography” (to borrow geographer Philip Howell’s phrase), confounding the moralized binary between commerciality and privacy that justified aggressive policing in the first place.

In Lawrence v. Texas, the Supreme Court held that choices regarding sex, family, and procreation should be shielded from undue state interference: “there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of the self that includes freedom of thought, belief, expression, and certain intimate conduct” (emphasis added). What are the intended contours of Justice Kennedy’s “certain”? May the state imprison fornicators, adulterers, and sex workers, or not?

Some legal commentators have argued that Lawrence delivers a far “less expansive,” more “privatized liberty” than it promises. But if a sex worker has the private-decisional right to terminate her pregnancy (although maybe not for long), why would she not have the private-decisional right to engage in the very sex that got her pregnant? Under the idealization of privacy—a bourgeois sensibility rigorously critiqued by feminist and leftists at least since Karl Marx’s On the Jewish Question (1844)—a woman (and anyone else) has a right to purchase both contraception and abortion services in the nominally public sphere, say at a clinic, hospital, or pharmacy. So commercialization does not necessarily convert private, sex-adjacent acts into public ones. Why then does commercialization automatically make sex public? The current constitutional regime, confusingly, extends the notion of privacy to protect buying and selling condoms at the local CVS, but not to buying or selling sex in one’s home. As Judge Richard Posner might say, “go figure.”


Intimacy for me but not for thee

In 2017 the Ninth Circuit Court of Appeals, so far the highest court to hear a post-Lawrence constitutional challenge to state anti-prostitution laws, rejected the plaintiffs’ arguments, not, chiefly, because sex work is not private, but rather because sex work is purportedly not intimate. In ESP v. Gascon, the court reasoned that the Fourteenth Amendment’s sexual liberty protections, articulated by Lawrence, applies only to conduct characterizable as intimate. Prostitution is not, avers the court, and for two reasons: first, “a prostitute’s relationship with a client ‘lasts for a short period and only as long as the client is willing to pay the fee’”; and, second, “the commercial nature of the relationship between prostitute and client suggests a far less selective relationship than that which previously has been held to constitute an intimate association.”

Prostitutes are seen to endanger family, marriage, procreation, and gendered divisions of labor, just as homosexuals were seen to before the advent of dignified, respectable homonormativity.

We can think of these assertions as the durational thesis and the fungibility thesis. Crudely, commercial sex is quick and dirty and hookers are interchangeable. It should not take an ethnography of sex work (and there are some great ones, such as here, here, and here), to see that both the durational and fungibility theses are false, at least as universally proclaimed by the Ninth Circuit. Commercial sex is not necessarily any longer or any shorter than noncommercial sex—and, at any rate, Lawrence protected gays and lesbians from criminalization for having sex, not for holding hands. Sex does not take up that much time in people’s relationships, and that holds true for relationships between clients and sex workers too. Yet the relationship between a client and sex worker may go on for days, months, or years, just like noncommercial relationships. As for fungibility, clearly both clients and sex workers discriminate. Different clients have different preferences, and different sex workers have different areas of expertise.

Probably the most popular preference of contemporary clients of sex work is the “Girlfriend Experience,” or GFE. Details of the GFE vary, but the basic idea is that clients want a partner—albeit a paid one—with whom to talk, travel, share dates and meals, and cuddle. On the podcast The Science of Sex, then–doctoral student Christina Pareirra described the GFE as “the most pricey service” among Nevada’s brothels. Pareirra, who wrote her dissertation on the brothels, found that the GFE was the service clients sought most, and the one sex workers most sought to perform (the GFE’s inverse, the “Porn Star Experience,” is quicker, cheaper, and generally perceived by brothel prostitutes as unbecoming). The GFE might involve multiple days and nights spent with a sex worker, including dates to shows and dinners.

In Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex (2007), Elizabeth Bernstein cautions us against thinking of these encounters as ersatz intimacy. Rather, and as a function of several broad political, economic, and cultural transformations,

the defining features of modern street prostitution (the prostitute as public, and therefore disreputable woman; the exchange of cash for expedient sexual release as ideological antithesis to private-sphere sex and love) have become increasingly muted. In their place has emerged a brave new world of commercially available intimate encounters that are subjectively normalized for sex workers and clients alike.

Just as commercialization is not the antithesis to privacy, Bernstein wishes to “complicate the view that the commodification of sexuality is transparently equitable with diminished intimacy and erotic experience.” Care, cooking, babysitting, and sex may all be purchased intimacies. The real difference among these services, notes Bass, is that paid sex pays better.

Like privacy, intimacy is abstract and subjective, its meaning contingent on norms, history, and power. But it takes judicial hubris to declare that commercial sexual relationships are altogether void of intimacy, at least for many clients. But what about for the sex workers? Is the intimacy of the GFE one-sided, and if so, should that augur against the constitutional protection of commercial sex?

There are three responses to this question; the third is the best.

The first answer is that even if the happy hooker is a patriarchal lie, peddled by Pretty Woman (1990) and “Cinde-fuckin’-rella,” it would be equally tendentious to suppose that all commercial sexual relationships are not and could never be intimate for the seller. Feelings may commingle with cash. Molly Smith and Juno Mac, sex workers and sex workers’ rights activists, are rightfully wary of defenses of prostitution anchored in sexual freedom, sexual expression, rights to pleasure and intimacy, and so forth. They worry that a politics of sex positivity can sanitize the material challenges of sex work. “Labour rights and safety are not the same as pleasure.” Likewise, Lorelei Lee, in her searing essay “Cash/Consent,” explains how dominant political discourses admit “only two options” for sex workers: either they are victimized by traffickers or empowered by their own sexual choices. Lost between narratives of victimization and empowerment are the experiences of real-life sex workers, experiences most often contoured by poverty, limited opportunities, and sometimes violence. Still, remind Smith and Mac, “you don’t have to like your job to want to keep it.” Yet as a constitutional question rather than a policy one, courts since the New Deal have been more likely to recognize rights to intimate association than unfettered rights to work. Perhaps, though, we can avoid the whitewashing danger of fucking-is-freedom by delimiting what we mean by intimacy.

Commercial sex is not necessarily any longer or any shorter than noncommercial sex—and, at any rate, Lawrence protected gays and lesbians from criminalization for having sex, not for holding hands.

And so the second answer to the question, Is sex work “intimate” for the sex worker? would entail recasting intimacy not as deep feelings and cuddly attachments, but as a referent for choices, behaviors, and beliefs culturally coded as personal—that is, closely connected with one’s sense of self and with one’s meaningful relationships. In the contemporary United States, sex is freighted with significance. Even for the most promiscuous person or busiest sex worker, choices about sex (and about marriage, family, and children) are likely more “intimate” than choices about, say, what to have for breakfast or whether to walk or bike to work.

The third answer, though, is that the Ninth Circuit erred from the outset, because Lawrence was never really about intimacy; it was about sex. No legal commentator seriously thinks Lawrence does not guarantee the right to a zipless fuck. So whether the oral or anal sex occurs between a lifelong monogamous couple or people who met fifteen minutes before on a dating app, the police cannot break into their home and arrest them. As legal scholar Cass Sunstein succinctly puts it, “the Lawrence Court did not make intimacy a precondition for constitutional protection.” Nevertheless, a cruel irony is that for gays to achieve rights to sex, they had to appear sexless before the court. Sex cannot be so easily cleansed off the sex worker, culturally and constitutionally speaking, which accounts, at least in part, for why homosexuals have fared better than hookers in winning rights.

Under ESP’s lights, a commercial sexual relationship, no matter how private, how intimate, how GFE, and how long-lasting, may be criminalized. Yet the one-night (or one-minute) stand, so long as no money is exchanged between partners, may not be. Hate fucks are covered by Lawrence too. Sometimes we want sex because it is a break from intimacy rather than its fulfillment; sometimes sex is hot (and meaningful) because it is nonintimate.


The enduring myth of nonphobic prostitution laws

Sex work may or may not be private, and it may or may not be intimate. Constitutionally, it might not make a difference one way or the other, if states have better reasons for criminalizing prostitution than criminalizing oral and anal sex. A driving point of Lawrence, developed from several earlier landmark equal protection cases, is that animus toward gay people and gay sex is not a legitimate reason for states to criminalize sodomy. Surely there are better reasons to criminalize prostitution than moral disapproval of prostitutes, right? Or could it be that animus—animus against sex workers, specifically, and animus, generally, against women who refuse the gendered labors of making babies and giving sex to men for free—underwrites anti-prostitution laws?

Sunstein suggests that “restrictions on prostitution are easily defensible,” and he is correct, given our running cultural presumptions about sex work. States might, for example, claim that the legalization of sex work would “contribute to the sexual subordination of women.” A few weeks after the Lawrence decision was delivered, another legal commentator offered, “anti-prostitution laws can still be justified based on concerns about coercion, exploitation of women, and the public health.” Indeed, this is exactly the line toed by the ESP court: “discouraging human trafficking and violence against women, discouraging illegal drug use, and preventing contagious and infectious diseases” are “legitimate reasons” for California to criminalize prostitution.

Animus against women who refuse the gendered labors of making babies and giving free sex to men underwrites anti-prostitution laws.

Yet anal sex may cause anal fissures, once claimed the state of New York in defense of its sodomy law; and “anal sex is the riskiest type of sex for getting or transmitting HIV.” Historically, sodomy laws were enforced against men who committed sexual assault (but not vaginal rape). Are these not good, nonphobic reasons for criminalizing sodomy? When it comes to gay sex—and same-sex marriage—courts came around to the position that states’ proclaimed reasons for criminalizing anal sex (or discriminating against gays and lesbians, or prohibiting same-sex marriage) were not legitimate but rather pretexts for prejudice.

It is past time to put the spotlight on the allegedly good, righteous-sounding reasons for outlawing prostitution. If no criminalizing regime—whether that regime prohibits the sale of sex, the buying of sex, or both—demonstrably advances state interests like public health and sex equality, and if in fact all such regimes demonstrably regress those state interests by endangering and impoverishing women and other sex workers, then maybe the good reasons for outlawing sex work are not so good after all.

In The Right to Sex (2021), philosopher Amia Srinivasan, aggregating studies on sex work policies and summarizing testimonies from sex workers, concludes that “legal restrictions on sex work make [sex workers’] lives harder, more dangerous, more violent, and more precarious. When prostitution is criminalized, as in most of the US, sex workers are raped by johns, and by the police, with impunity.” Srinivasan catalogs other countries’ regulatory models, less draconian than the United States’, but nevertheless finds that “under none of these criminalizing regimes are sex workers, as a class, better off.” Study after study after study after study show that criminalizing sex work—including criminalizing just the buyers—puts sex workers at far greater risk of physical and sexual violence; and criminalization regimes disproportionately endanger sex workers who are queer, transgender, racial minorities, and immigrants.

Astonishingly, several of the studies ESP cites to legitimate California’s anti-prostitution law advocate—wait for it—repealing anti-prostitution laws. One cited study reports that decriminalization would “make it easier to protect sex workers from violence and rape, because women could complain without fearing prosecution”; and that “with the closing of the brothels [in France in the 1960s], venereal diseases, public solicitation, and police corruption all increased and women were more dependent upon pimps.” Another cited study suggests that increased drug use among African American women prostitutes must be “contextualize[d] within a broader framework that acknowledges the social, economic, and political factors that indirectly shape the lives of prostitutes.” In other words, it might not be sex work per se that causes drug use, but poverty, violence, and criminality. ESP cites a Centers for Disease Control and Prevention study to claim that “prostitution is linked to the transmission of AIDS and other sexually transmitted diseases,” but that same CDC study warns that “the illegal—and often criminalized—nature of exchange sex makes it difficult to gather population-level data on HIV risk among this population.” The CDC study points out that “many persons who exchange sex face stigma, poverty, and lack of access to health care and other social services—all of which pose challenges to HIV prevention efforts.”

When we uncover a string of sex workers murdered by serial killers in Long Island or Vancouver, which is more likely: That criminalization and aggressive policing literally and figuratively marginalize sex workers, that criminalization amplifies their vulnerability to violence, and that criminalization degrades their moral worth in the eyes of others; or that criminalization promotes gender equality?

In 1957 the influential Report of the Departmental Committee on Homosexual Offences and Prostitution, also known as the Wolfenden Report, called for the decriminalization of homosexual acts in the United Kingdom. At the same time, the report advocated punishing street prostitution more harshly and criminalizing male sex workers. Across the pond and around the same time, the Model Penal Code (MPC), promulgated by the American Law Institute, recommended that states decriminalize consensual sodomy yet criminalize prostitution, brothel-keeping, and similar offenses.

Queers and sex workers ought to share a political project: to build a world in which sex practices, gender identities, and gender expressions are policed a whole lot less.

The Wolfenden Report and the MPC do not, of course, exhaustively explain why gays and sex workers have received such disparate political, cultural, and legal treatment over the past several generations. But these documents, which have so powerfully shaped criminal law and police practices, forecast a hierarchy of moral worth, a stratification of respectability that frames how we understand sexual rights and who we think are entitled to them.

In Playing the Whore (2014), former sex worker and journalist Melissa Gira Grant reminds us that “the raid on the Stonewall Inn one June night in 1969 would not have become a police riot were it not for the street-hustling transvestites (as they then referred to themselves) who resisted when threatened with arrest, who tossed coins and bottles back at the police.” Echoing Grant, Smith and Mac write, “the bravery and resilience of sex workers has played a part in many liberation struggles . . . they were part of the riots at Compton’s Cafeteria in San Francisco and the Stonewall Inn in New York that kickstarted the LGBTQ liberation movement in the United States.”

U.S. courts have affirmed the criminality of prostitution by distancing sex work from gay sex, both conceptually and morally. The courts’ maneuver “judicializes” the Wolfenden Report’s and MPC’s recommendations yet belies queers’ and sex workers’ historical affinity and common struggle.

Queers and sex workers—evidently, not discrete populations—share or ought to share a political project: to build a world in which sex practices, gender identities, and gender expressions are policed a whole lot less. The fight for sexual freedom should not be artificially cabined by sexual identity, whether on the streets, in statehouses, or in the courts.

Author’s Note: Thanks to law professor Reva Siegel and law student Anna Lipin for their excellent guidance.