Sex Workers Consider U.S. Supreme Court Appeal Over Anti-Prostitution Law

Sex Workers Consider U.S. Supreme Court Appeal Over Anti-Prostitution Law
Rhett Pardon

SAN FRANCISCO — Will the issue of whether to legalize prostitution reach the U.S. Supreme Court?

Today, the president of ESPLER Project — known officially as the Erotic Service Providers Legal, Education and Research Project —  said that’s where her sex-worker group may try to press its case.

“We’re disappointed and considering going to the Supreme Court,” Doogan told XBIZ shortly after the 9th U.S. Circuit Court of Appeals issued an order that denied a petition to rehear an appeal over ESPLER Project’s three-year-old case.

ESPLER Project filed a complaint at U.S. federal court claiming that the state’s anti-prostitution statute known as 647(b) of the California Penal Code, unfairly deprives adults the right to private consensual activity, criminalizes the discussion of such activity and unconstitutionally places prohibitions on individuals’ right to freely associate. The group filed its suit against California's attorney general and four district attorneys across the state.

Last year industry attorneys Louis Sirkin and D. Gill Sperlein asked the appeals panel to toss a lower court's judgment against ESPLER Project, remand the case to the lower court and declare the anti-prostitution law unconstitutionality. 

ESPLER Project’s argument was rejected and another motion was made to rehear the case en banc, a session heard before all judges of the court.

Today, three judges sitting on the 9th Circuit denied rehearing the case.

“The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the petition en banc. The petition for rehearing en banc is denied," today’s order said.

Sirken, in a statement today, said: “We’re disappointed that the 9th Circuit missed this opportunity to declare that the Constitution protects the right of consenting adults to engage in private sexual activity, even if they are paying for it or getting paid."

“We’re mindful that, in our nation’s history, other constitutional issues have taken a persistent and continuing effort until the courts get it right,” Sirkin said. “This case is not over and we are seriously considering an appeal to the Supreme Court. This is an important issue that affects all Americans, and it deserves further consideration by the courts.”

ESPLER Project’s case was supported by amicus briefs from over 30 civil rights and LGBTQ organizations, including the ACLU, the First Amendment Lawyers Association, the Free Speech Coalition, Transgender Law Center and the Woodhull Freedom Foundation.