Mandating Tests for Sex Workers Doesn't Get a Passing Grade

Often when I engage in conversations with folks about sex work and public policy, I'm asked how I feel about mandatory testing of sex workers for sexually transmitted infections (STIs). And, when I answer that I don't support such measures, they're frequently astonished. "I thought you said that you support harm reduction methods! So why not this? Wouldn't requiring sex workers to be regularly tested reduce the spread of HIV and other STIs?"

No. Testing doesn't "prevent" anything. It provides information towards that end, and only if it's done right.

Let's take the argument for mandatory testing to its logical extreme. Sex workers are a relatively small segment of the total number of sexually active people out there, and according to the best studies out there, contribute very little to STIs overall, and virtually none of HIV transmissions. So if we were to mandate STI testing, then it makes sense to do that for all sexually active adults and adolescents, not just sex workers. Of course, it's reasonable to assume that a significant number of people would lie about being sexually active, in order to avoid being tested. The answer then would be to test everyone from the age of thirteen up.

This would, of course, be met with a number of objections, from cost to loss of freedom to invasions of privacy. And yet, some would still argue that, since STIs constitute an "occupational hazard" for sex workers, then mandatory testing therefore qualifies as an occupational health and safety measure.

But again, this doesn't make sense when applied to comparable circumstances. Hospital workers, for example, are exposed to far more diseases, some of them far more dangerous, and far more often. Yet hospitals do not regularly test every employee for every disease they might have been exposed to. Instead, they find it more effective to implement preventative measures, much as full-service sex workers use condoms and other safer sex measures to reduce the risk of contracting HIV or other infections.

There's also the question of how such measures are best mandated and enforced. More often, they are mandated as a condition of employment rather than by legal regulation; even when laws or government regulations are put in place, it is usually left to employers to maintain and enforce, with government agencies making spot checks or responding to employee complaints. Also, the most effective systems are when lawmakers institute a general mandate to assure health and safety, while leaving specifics to another body which may adapt more quickly to changes in evidence as to the best means of assuring this.

An example of which I'm personally aware is cardiopulmonary resuscitation (CPR). I've been trained and recertified many times over the years, and have noticed how the protocols change as new evidence comes in, most significantly the use of an automated external defibrillator (AED). While there are laws determining who may train and certify people, those laws do not specify the protocols for performing CPR; instead, the groups that train and certify pay attention to new scientific data, and update protocols accordingly.

Compare that system to how Nevada mandates STI testing for sex workers in their legal brothels. The Centers for Disease Control and Prevention recommend that people with multiple sexual partners should be screened every three to six months, based on the best available medical studies; more frequent tests do not produce more reliable results. Nevada's legal requirements, relatively unchanged since 1937, are that women working in brothels are required to weekly medical exams, and at their own expense. With consistent condom usage, and STI rates reported at zero, where is the sense in having sex workers required to be tested at thirteen times the rate recommended by public health officials?

There is no good reason to impose such a requirement on sex workers when other people in similar circumstances are not similarly required. To impose such a burden is nothing more than discrimination, rooted in stigma and unnecessarily perpetuating it. Sex workers have long known how to minimize these risks, as proven by empirical studies. They need neither bureaucrats nor moralists to require anything further. If anything, the rest of us would benefit from listening to their collective experience.

The Case for Privatizing Marriage

Anyone reading this blog should not be surprised that I support marriage equality for same-sex couples. In fact, given its positive effect for transgender and intersex folks, we should consider following Norway's lead and just refer to it as "gender-neutral" marriage. For someone of both progressive and romantic leanings, it's a no-brainer -- it affirms love in a fair and straightforward way.

But there's also part of me which is irked by the whole brouhaha over the issue. Take the recent news in New Hampshire, where marriage equality is closer than ever to legislative approval. They actually introduced a clause to "guarantee" that no member of the clergy would have to officiate at a same-sex wedding if they didn't want to. Excuse me, but ... clergy already have that right! They've had the right to refuse to officiate at any marriage ceremony for any reason, for centuries! The only reason I can see that this was written into the bill was to placate the paranoia of the far Right, who keep harping the lie that letting any couple which is not clearly "one man and one woman" get a marriage license would somehow hurt the rest of us.

Right-wingers have also argued that, if we take this step, then what's to stop someone from marrying two or more people, or a child, or their pet dog or cat? Well, the latter two examples are answered simply enough: Consent. Marriage, after all, is about taking responsibility for one another, and that means we should be sure that each partner fully understands those responsibilities, and is fully able to carry them out.

That being said, when it comes to plural marriage arrangements, I have no problem with three or more consenting adults joining together -- and it's my openness on that which makes me part company with many marriage equality activists. Many of them argue that it would make things too complicated, or that you wouldn't have equality in such an arrangement. Again, I'd go back to the issue of consent: If we accept those as a given, and the partners in question fully understand and accept that, then where is the compelling interest to deny them their choice? There is also the issue of whether such complexity and inequality is indeed "a given"; from what I've seen and heard of many polyamorous households, it's not.

So here's the sticky bit ... If we consider marriage a free union entered into by consenting adults, and we consider that it is not the government's business to tell consenting adults which consenting adults they can or cannot marry, then why marriage licenses? A driver's license I understand -- there is no "right to drive a car," and public safety is a compelling reason to make sure that those who do can do so safely. But, being licensed to fall in love and build a family together? Sorry, but that doesn't square with the idea of marriage as a right, or even as a responsibility.

Long before I wrote this blog, I've advocated replacing state-issued marriage licenses with contracts. Each couple (or menage) would draft their own agreement of what their respective rights and responsibilities would be, sign it in the presence of witnesses, and even register it with the appropriate government office. They could even spell out terms for dissolution, including the option to settle their divorce through arbitration rather than the more adversarial court system; or even establish a time limit with the option to renew.

Many people across the political and religious spectrum have argued for a similar approach, and especially as an answer to the same-sex marriage debate. Some like to refer to "getting government out of the marriage business"; I think it more accurate to think of it as changing government's role with respect to marriage, from that of paternalistic protector to one of record-keeper and potential arbiter. Naturally, there are many who would consider this too "radical" a proposal. So, let me address some major objections...

Objection #1: This would demand a radical change in our marriage laws. Response: Not exactly. The most obvious change would be that, instead of the government issuing licenses, they would record contracts. Divorce laws could change by allowing spouses to determine ahead of time how dissolution would proceed, but this would follow existing laws regarding prenuptial agreements. Every other aspect of law regarding marriage would pretty much stay the same.

Objection #2: What about the role of religion? Response: The only major change would be that we would not require clergy to become government agents. If you'd like your priest, minister, rabbi, imam or other spiritual advisor to sign your contract as a witness, you're free to do so. But it would no longer be required that you have such a signature. If anything, having an explicit contract in writing is in keeping with many religious traditions, such as the Jewish ketubah.

Objection #3: If everybody gets to draft their own contract, then we wouldn't have a single standard for determining who can get married, when they can divorce, etc. Response: Currently, we already have such a state of affairs in this country. Each state and territory can determine their own age of consent for marriage, whether they will allow no-fault divorce, community property versus equitable distribution, and so forth. But there would still be a fundamental definition of marriage as a freely-entered union of consenting adults based on love to create a new household or family.

Objection #4: So if a man comes to the town clerk with his five year old daughter, and hands over a contract which says he married her, ... Response: Again, there's the issue of consent. Can we be sure that the five year old fully understands the contract, her rights and responsibilities as this man's wife, and so forth? If not, then it's not a valid contract, and it can be challenged and nullified on those grounds. The real question is whether the government should have the power to tell consenting adults who they can and cannot marry, and the specific terms by which they can enter into or end a marriage, before the fact.

Objection #5: Reducing marriage to "just another contract" would cheapen it, and take away its vital social and spiritual function. Response: If anything, it could heighten appreciation for that. While most marriage contracts would likely follow a common template, potential partners would have to discuss their respective rights and responsibilities with one another before setting their signatures on the contract they draft. That means they would actually have to know what it means to be married, and especially in their circumstance -- a much more robust approach than simply filling out a license form and finding a willing officiant. While there is no guarantee that this would take place, having the specifics written out like this would certainly increase the odds for greater awareness and appreciate of the meaning and role of marriage as an institution.

Objection #6: What about the children? The whole point of having the state issue marriage licenses is to guarantee the welfare of a couple's children. Response: The history of marriage and marital law says otherwise. Marriage used to be a private contract between families, with little or no intervention by state or church. England introduced licensure in the fourteenth century as a way of waiving the three-week waiting period required for declaring banns. In the United States, marriages licenses did not become required until the middle of the nineteenth century, as a means of enforcing anti-miscegenation laws. There is also no reason to believe that children would be harmed by replacing state-issued licenses with private contracts; if anything, the partners could make specific stipulations in their contract for the benefit of any children.

I'm sure folks out there could come up with other objections and questions, but the bottom line is this: If we believe that grown-ups have a right to marry, then we should treat them as grown-ups and let them spell out the terms for themselves. They shouldn't need a paternalistic state to tell them when and how.