Sex Work is Work: The Discursive Influence of the New Zealand Prostitutes’ Collective

By: Anjali Mehindiratta

Abstract

The legality of sex work remains a space of acute contestation, even in Western liberal democracies. However, in 2003, New Zealand passed the Prostitution Reform Act and became the first country in the world to fully decriminalize sex work. This paper examines the role played by the New Zealand Prostitutes’ Collective (NZPC) in contributing to this remarkable policy shift. It elaborates on how civil society organizations such as the NZPC appear to play a significant role in prompting legislative change, especially around contentious topics such as sex work. The NZPC is first evaluated as a ‘norm entrepreneur’, an actor that seeks to shift public attitudes and norms. In her book ‘Diplomacy of Conscience’, Purdue professor of political science Ann Marie Clark describes a four-stage theory of norm emergence. The NZPC’s contributions at each of stage of this process are examined in the second half of the paper.

La légalité du travail du sexe reste un domaine de vive contestation, même dans les démocraties libérales occidentales. Mais en 2003, la Nouvelle-Zélande a adopté la Prostitution Reform Act et est devenue le premier pays au monde à décriminaliser complètement le travail du sexe. Cet article examine le rôle joué par le New Zealand Prostitutes’ Collective (NZPC) dans la contribution à ce remarquable changement de politique. Il explique comment les organisations de la société civile telles que le NZPC semblent jouer un rôle important pour encourager des changements législatifs, en particulier autour de sujets controversés tels que le travail du sexe. Le NZPC est d’abord évalué comme un « entrepreneur de normes », un acteur qui cherche à modifier les attitudes et les normes du public. Dans son livre Diplomacy of Conscience, la professeure de sciences politiques de Purdue, Ann Marie Clark, décrit une théorie de l’émergence des normes en quatre étapes. Les contributions du NZPC à chacune des étapes de ce processus sont examinées dans la seconde moitié de l’article.

Introduction

In 2003, with the passage of the Prostitution- Reform Act (PRA), New Zealand (NZ) became the first country in the world to decriminalize sex work. 1 Many scholars have identified the New Zealand Prostitutes Collective (NZPC) as a major civil society actor in achieving this transformative outcome. This essay will first assert that the NZPC can be considered a robust norm entrepreneur, and secondly that its discursive abilities strongly influenced the passage of the PRA. To establish the NZPC’s status as an effective norm entrepreneur, the Collective will be evaluated for four key attributes of entrepreneurial success: internal coherence, perseverance, expertise, and international or formal recognition. Richard Price’s review article “Transnational Civil Society and Advocacy in World Politics” and Ann Marie Clark’s book “Diplomacy of Conscience” identify these attributes as being key characteristics of norm entrepreneurs. To assert the NZPC’s discursive influence on the legal and social norms surrounding sex work in New Zealand, the organization will be analyzed through the lens of Clark’s four-phase theory of norm emergence to ascertain how the Collective contributed during each phase. Civil society organizations have the unique power to shift public opinion and social norms dramatically on issues that are deeply controversial. The NZPC’s long fight for decriminalization provides a salient case study for how other civil society actors might achieve victory in their own contentious endeavours.

Background on Sex Work as a Development Issue

Before being able to discuss the role of the NZPC in the passing of the PRA, it is first necessary to understand the decriminalization of sex work in the development context. Sex work - and its legalization - is a deeply contentious issue worldwide. Anti-prostitution scholars and “neo abolitionist” activists argue that sex work is inherently coercive and exploitative of women. 2 Sex work and human trafficking are often conflated by anti-prostitution advocates who believe that women have been victimized by sex work and must be “rescued” from it. 3 However, in reality it is the criminalization of sex work which perpetuates the most harm against individuals in the industry. Legislation criminalizing sex work marginalizes sex workers and their clients which pushes the industry underground. Consequently, sex workers are more susceptible to violence, less able to exercise power over their labor, and often unable to pursue health and justice services. 4 Through decriminalization, sex workers are afforded safer working conditions and the same employment rights as members of any other service industry. 5 Empirical evidence has demonstrated that decriminalization of sex work improves human rights and reduces harm associated with violence and exploitation. 6 It is important to recognize that sex worker abuse is not a development issue that is exclusive to the Global South; the problem can also occur in advanced industrial democracies. 7 New Zealand was one such democracy, wherein prior to the passing of the Prostitution Reform Act, all activities related to sex work (soliciting, brothel operation, etc.) were criminalized. 8 Lacking legal rights, sex workers had no protection against labour and employment abuses. 9 The NZPC was thus formed to address the problems that arose from sex work criminalization, as well as to remedy the fact that sex workers’ voices were rarely amplified in discussions about their profession. 10.

NZPC as a Norm Entrepreneur

Internal coherence is a key characteristic of a successful norm entrepreneur, and the NZPC possesses this attribute in spades. The NZPC is an organization that was founded and is driven by its principled and immutable commitment to the cause of sex workers’ rights.11,12 Its motivations and aims are derived from its founding members’ experiences of discrimination and marginalization, which accords it with a strong belief in labour justice for its constituency. 13 What enhances its internal coherence is the fact that the organization was established as a grassroots, participatory movement. At the time of its founding, the NZPC did not even have formal membership list, owing to the fact that many sex workers did not dare risk identifying themselves. The organization believed these kinds of formalities would bar many from participating in creating change, and so these structures were eliminated to ensure equal access to the cause. 14 Moreover, the Collective has consistently emphasized the involvement of sex workers in policy consultation and design. 15 One of the NZPC’s primary missions is uplifting the voices of sex workers, that they might be empowered to inform the legislation that affects them. 16 The NZPC’s dedication to thoroughly incorporating its constituency has enhanced the organization’s clarity on its key commitments and principles. 17

Established in 1987, the NZPC has embodied a characteristic that is key to norm entrepreneurs: perseverance. By engaging in a long-term struggle for decriminalization, the NZPC has proven its resolve and commitment. 18 Nearly two decades elapsed between the organization’s founding and the passing of the PRA in 2003. During this period, the Collective was crucial in advocating for and supporting the rights of sex workers. 19 This advocacy was heavily characterized by adversity, as many sex worker rights organizations (SWROs) around the globe often confront barriers to making their voices heard in government due to legitimacy issues surrounding the industry itself. 20 Despite this, the NZPC persisted in its fight for decriminalization, and was gradually able to earn its place as a legitimate stakeholder in government discussions on the sex work industry. 21

In the debate on sex work reform in the country, the NZPC established itself as having the foremost expertise and knowledge on the issue, strengthening its leverage on the construction of norms around the industry. It did so by ensuring its membership comprised of sex workers, thus lending the organization legitimacy in its claim as the actor with the most knowledge of the situation ‘on the ground’. 22 Clark explains that fact interpretation is also an important asset of NGOs in their quest for norm construction. 23 Indeed, the Collective was well aware of the influence it marshalled, and its spokesperson Catherine Healy “quickly built a reputation as an informed media expert, a reliable and accessible source on the sex industry”. 24 The NZPC took care in framing their cause and making it legible, understanding that decriminalization represented a highly contested issue. The organization made strategic links with public health researchers to ensure that their arguments in favour of decriminalization “were always evidence based”. 25 This careful work allowed the NZPC to become an authority in the sex work debate in New Zealand.

Finally, the NZPC’s international reputation and formal incorporation in government processes supports the organization as being a norm entrepreneur. The advocacy being advanced by the Collective enjoyed global recognition, and aforementioned spokesperson Catherine Healy was even invited by the World Health Organization to Vietnam to disseminate education on HIV/AIDS prevention in the context of sex work. 26 Moreover, since its founding, the NZPC has maintained ties with the NZ Ministry of Health, which became its primary funder in 1988 with the aim of depressing the spread of HIV/AIDs in the sex work industry. 27 The autonomy of the organization has often been called into question over this fact, but the group has asserted that government funding has not deradicalized its political goals. 28,29 Indeed, the organization’s early partnership with NZ’s Health Department has lent the Collective a level of credibility and legitimacy in the “public arena” and has serviced the SWRO’s aims in swaying public and political opinion in favour of decriminalization. 30

The NZPC can indeed be considered a robust norm entrepreneur in the context of New Zealand’s sex work industry. Having established this, we may now turn to examine how the organization has exerted a discursive influence that culminated in the passage of the PRA. Clark espouses a fourstage framework to norm emergence. The phases are as follows: I) fact finding, ii) consensus building, iii) principled norm construction, iv) norm application. 31 Examination of the NZPC at each phase of sex worker norm construction in New Zealand reveals that the SWRO was an incredibly important and influential actor at each point in the process.

Phase One: Fact Finding

Clark asserts that the process of enshrining normative concepts in legal code must begin by initiating discussion on “questions of right and wrong”. 32 The centrality of NGOs (like the NZPC) at this stage cannot be overstated. At this point of norm emergence, NGOs are charged with illuminating “information about specific human rights violations”. 33 NGOs also promote “critical reflection” on the current “common standard” of normative behaviour, and through interpretation of facts, raise questions on whether or not the standard should be permitted to persist. 34

The NZPC was very successful at drawing attention to the human rights violations of sex workers and how criminalization in the industry promoted harm. 35 Though the organization did embrace the task of educating sex workers about safe sex, it also took on the broader mission of educating the public on the hazards endured by sex workers as a consequence of criminalization. 36 Members of the Collective took pains to substantiate their claims with well-researched evidence and they drew upon empirical analyses to counter the academics and politicians who opposed their cause. 37 The NZPC acknowledged that the public was rife with negative misperceptions of the sex work industry, and thus set about demystifying the industry in order to better relay how decriminalization could prevent the very human rights abuses that were occurring within it. 38

Of note is how NZPC’s involvement with the NZ Health Ministry in tackling HIV/AIDs supported the organization’s credibility as a reputable source. Clark discusses how NGOS’ “established history of accuracy” will determine the success of their publicization efforts. While ensuring it was not “being controlled by a government agency”, the Collective leveraged its governmental endowment to disseminate information on sex work issues. 39 The NZPC did not shy away from any media attention garnered by its involvement in the fight against HIV/AIDs. 40 Though sex workers were being painted by the media as “scapegoats” for transmission of the disease in NZ, the NZPC countered with research showing how sex workers actually “had lower exposure to HIV” than individuals who were not in the industry. 41 Furthermore, the Collective used these media opportunities to increase awareness of sex workers’ rights, and to inform the public on the reality of the sex work industry. 42 The NZPC capitalized on its initial, authoritative platform as a public health organization to explain the importance of decriminalization to the NZ public. 43

Phase Two: Consensus Building

In the second phase of norm emergence, principled NGOs lobby for broader recognition of the need for legal protections against human rights abuses. 44 NGOs use their expertise to frame facts in a specific way in order to galvanize “support and pressure for change” from the general public. 45 The second phase can be summed up as a stage of ‘problematization’, wherein the norm entrepreneur rallies its allies and the public to demand “normative remedies” to respond to problems. 46 NGOs play a critical role in creating narratives and framing issues in a way that “resonates with broader political understandings”. 47 Where the first stage makes their cause legible to the public, the second stage involves convincing the public that the cause is urgent and worthy of remediation. Again, the NZPC’s importance in this process cannot be overstated. In interviews conducted with various allies of the decriminalization movement, many respondents reported that it was only through encountering the NZPC that they became “motivated to engage with the sex industry” and to push for sex work reform. 48 Prior to contact with the SWRO, very few of the interviewees had a thorough understanding of the need for decriminalization. It is anecdotes like these which make the educational and influential attributes of the Collective irrefutable. The NZPC’s ability to change opinions and construct a narrative around the need for decriminalization were central to achieving reform. 49

The NZPC was also fundamental in gathering allies, creating networks, and establishing partnerships in the fight for decriminalization. 50 The SWRO used a variety of methods to court allies, including hosting weekly open house drinking nights at its office to foster intermingling between academics, businesspeople, and advocates. 51 Many organizations, such as the Young Women’s Christian Association, believed that decriminalization would be equated to “an endorsement for sex work”. 52 However, the NZPC remedied these concerns by emphasizing decriminalization as being central to harm reduction. Sex work is an industry that is difficult for women to fully exit, but decriminalization would facilitate such an exit. 53 Through a shared commitment to harm reduction and human rights, the NZPC was able to change the opinions of organizations and persuade them to join the campaign. 54

Finally, the NZPC was critical in handling criticisms levied against its cause by opponents. With any process of norm construction, contestation is bound to emerge from actors with differing incentives and beliefs. 55 This is especially true of an issue as controversial as sex work, but the Collective governed the negative discourse masterfully. They did this by refusing to engage in argumentation that relied on moral grounds, which could lead to bad faith debates. Instead, they exclusively used public health and human rights arguments to frame the issues at hand.

Phase Three: Principled Norm Construction

Principled norm construction is the process of norm emergence that aims to establish formal legal standards. 56 The NGO’s role during this stage is to wield its expertise to influence the drafting of legislation, and to serve as a consultant to policymakers. The New Zealand government determined it best to adopt a “collaborative governance” approach to sex work reform. A collaborative approach is defined as a process whereby non-state stakeholders are directly engaged in order to achieve the best, most responsive outcomes. 57 The government considered the NZPC as a key partner in ensuring the policy was appropriate, meaningful, and authentic. 58 Because the NZ government took an approach that involved the NZPC intimately, the discus- sions resulted in policies that reflected the real concerns of sex workers rather than tokenizing them. 59,60

The NZPC also influenced principled norm construction by creating a draft decriminalization Bill in 1994 upon which the PRA was based. 61 Their version of the Bill was submitted to Parliament in 2000 by MP Tim Barnett, who the Collective had collected as an ally in the years prior. 62 As the creators of the blueprint for the PRA, the NZPC can explicitly claim ownership of defining the norms surrounding sex work. They played a direct and explicit role in crafting the laws that ultimately achieved their main goal. 63

Phase Four: Norm Application

The final phase of norm emergence oversees the application of norms to principle challenging circumstances. 64 As the new PRA began to be implemented, the NZPC continued its work of norm construction by providing resources and services that complemented the new era of decriminalization. Two examples best illustrate the NZPC’s ongoing support of sex workers and the new legal norms protecting them. With sex work being decriminalized, sex workers could legally file complaints against brothel operators without fearing retribution. When sex workers pursued legal action, the NZPC offered them information on their rights, options, and legal proceedings. 65 Another effort of the Ministry of Health and the Collective was creating pamphlets and posters informing sex work clients of the legal requirement of contraceptives during oral and penetrative sex. 66 In removing the burden of responsibility from sex workers to inform clients of the law, the vulnerability of these workers was reduced. Where use of contraceptives had previously and regularly stood as a “10-minute argument” between a sex worker and client, the issues could now be resolved by the sex worker simply stating that ‘the law mandates it’. 67 These two cases demonstrate how the NZPC continues to play a role in asserting newly established norms.

Conclusion

New Zealand’s decriminalization of sex work was an immense feat, and one that would not have been accomplished without the entrepreneurial competencies of the NZPC. The Collective was central to informing and framing the emerging norms surrounding the sex work industry. Its discursive influence on politicians and the public cannot be overstated. Decriminalization has yet to be achieved in the vast majority of countries and territories. The success of New Zealand’s story suggests that such a change must come from civil society. Strong advocates for the cause are necessary to achieve truly transformative outcomes.

Endnotes

1. Gillian M Abel, “A Decade of Decriminalization: Sex Work ‘down under’ but Not Underground,” Criminology & Criminal Justice 14, no. 5 (November 1, 2014): 580, https://doi. org/10.1177/1748895814523024. 2. Aroney Eurydice, “Changing Minds and Changing Laws: How New Zealand Sex Workers and Their Allies Shaped Decriminalisation in New Zealand,” Sexuality Research & Social Policy 18, no. 4 (December 2021): 955, http://dx.doi.org.proxy3. library.mcgill.ca/10.1007/s13178-021-00564-z. 3. Chi Adanna Mgbako, “Introduction ‘We Have Voices’” (NYU Press, 2016), 7, https://doi.org/10.18574/ nyu/9781479817566.003.0001. 4. Mgbako, 7. 5. Abel, “A Decade of Decriminalization,” 581. 6. Eurydice, “Changing Minds and Changing Laws,” 952. 7. Mgbako, “Introduction ‘We Have Voices,’” 11. 8. Abel, “A Decade of Decriminalization,” 581. 9. Gillian Abel et al., Taking the Crime out of Sex Work: New Zealand Sex Workers’ Fight for Decriminalisation (Bristol, UNITED KINGDOM: Policy Press, 2010), 46, http://ebookcentral.proquest.com/lib/mcgill/detail.action?docID=555723. 10. Abel et al., 46. 11. Abel et al., 46. 12. Giovanni Mantilla, “Emerging International Human Rights 13 Norms for Transnational Corporations,” Global Governance 15, no. 2 (2009): 280. 13. Abel et al., Taking the Crime out of Sex Work, 46. 14. Abel et al., 46. 15. Eurydice, “Changing Minds and Changing Laws,” 954. 16. Abel, “A Decade of Decriminalization,” 581. 17. Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton, UNITED STATES: Princeton University Press, 2001), 11, http://ebookcentral.proquest.com/lib/mcgill/detail.action?docID=581572. 18. Janice Raymond, “Gatekeeping Decriminalization of Prostitution: The Ubiquitous Influence of the New Zealand Prostitutes’ Collective,” Dignity: A Journal of Analysis of Exploitation and Violence 3, no. 2 (April 1, 2018): 2, https://doi. org/10.23860/dignity.2018.03.02.06. 19. Raymond, 1. 20. Eurydice, “Changing Minds and Changing Laws,” 955. 21. Eurydice, 954. 22. Eurydice, 958. 23. Clark, Diplomacy of Conscience, 16. 24. Eurydice, “Changing Minds and Changing Laws,” 958. 25. Abel, “A Decade of Decriminalization,” 582. 26. Eurydice, “Changing Minds and Changing Laws,” 958. 27. Raymond, “Gatekeeping Decriminalization of Prostitution,” 2. 28. Abel et al., Taking the Crime out of Sex Work, 47. 29. Rhiannon Morgan, “On Political Institutions and Social Movement Dynamics: The Case of the United Nations and the Global Indigenous Movement,” International Political Science Review 28, no. 3 (June 1, 2007): 274, https://doi. org/10.1177/0192512107077099. 30. Abel, “A Decade of Decriminalization,” 583. 31. Clark, Diplomacy of Conscience, 32. 32. Clark, 33. 33. Clark, 33. 34. Clark, 16. 35. Abel, “A Decade of Decriminalization,” 582. 36. Raymond, “Gatekeeping Decriminalization of Prostitution,” 2. 37. Eurydice, “Changing Minds and Changing Laws,” 958. 38. Abel et al., Taking the Crime out of Sex Work, 46. 39. Abel et al., 47. 40. Abel et al., 51. 41. Abel et al., 51. 42. Abel et al., 51. 43. Mantilla, “Emerging International Human Rights Norms for Transnational Corporations,” 280. 44. Clark, Diplomacy of Conscience, 34. 45. Clark, 36. 46. Clark, 35. 47. Mantilla, “Emerging International Human Rights Norms for Transnational Corporations,” 280. 48. Eurydice, “Changing Minds and Changing Laws,” 957. 49. Eurydice, 957. 50. Abel, “A Decade of Decriminalization,” 580. 51. Eurydice, “Changing Minds and Changing Laws,” 959. 52. Eurydice, 958. 53. Eurydice, 958. 54. Eurydice, 958.

55. Clark, Diplomacy of Conscience, 5. 56. Clark, 34. 57. Eurydice, “Changing Minds and Changing Laws,” 954. 58. Eurydice, 954. 59. Abel, “A Decade of Decriminalization,” 582. 60. Morgan, “On Political Institutions and Social Movement Dynamics,” 274. 61. Eurydice, “Changing Minds and Changing Laws,” 959. 62. Abel, “A Decade of Decriminalization,” 583. 63. Abel, 583. 64. Clark, Diplomacy of Conscience, 35. 65. Abel, “A Decade of Decriminalization,” 585. 66. Abel, 586. 67. Abel, 586.