Sex Work and Immigration: When Criminalization Is Disguised as Protection

Sex Work and Immigration: When Criminalization Is Disguised as Protection

This post is part of our symposium on the political economy of sex work. Read the rest of the symposium here.

Gilda Merlot

I am an undocumented immigrant from Honduras. I crossed the Guatemalan, Mexican, and U.S. borders when I was 5 years old. I’m currently a sex worker and a 25-year-old DACA recipient. Like most sex workers, I want decriminalization, or the elimination of all criminal penalties for sex work. The criminal legal system – and the vice divisions of police that carry out prostitution stings – will not solve the issues of poverty, housing, medical care, educational accessibility, and drug use, which are the actual issues affecting sex workers. The reasoning behind any kind of criminalization is to eliminate, destroy, or “end demand” for something through the deterrence/threat of state violence, prison, and death.

Sex workers are criminalized under various models – even if the state criminalizes just the acts of buying sex or managing or employing sex workers, a framework which is often called “the Nordic Model.” The Nordic Model is criminalization of sex workers by another name. To see how this works, we can look to another law that criminalized hiring a certain group of people under the guise of “protection” against exploitation: the Immigration Reform and Control Act of 1986 (IRCA). The Nordic Model criminalizes sex workers in the same way that the Immigration Reform and Control Act of 1986 (IRCA) criminalized undocumented workers.

Under IRCA, it became illegal for U.S. employers to hire undocumented immigrants. This allowed employers, landlords, and banks to discriminate against us. In the speech Reagan gave upon signing IRCA into law, he stressed that the bill’s provisions intended to avoid “discrimination” against undocumented immigrants, despite the entire bill being about eliminating our existence. According to Reagan, “The employer sanctions program is the keystone and major element. It will remove the incentive for illegal immigration by eliminating the job opportunities which draw illegal aliens here.”

According to this narrative “illegal immigrants” exist because employers “demand” our labor, and therefore our presence in this country. We are merely objects in a supply-and-demand model. Reagan’s IRCA solution was to punish anyone who employs us while claiming he was against our exploitation. This is a huge contradiction. Denying someone the right to work without eliminating the necessity of work to live is a death sentence. According to Alan K. Simpson, who introduced the bill that Reagan signed, “Reagan ‘knew that it was not right for people to be abused … Anybody who’s here illegally is going to be abused in some way, either financially [or] physically. They have no rights.” The idea is that our exploitation or any abuse we face is caused by being employed illegally.

Undocumented immigrants work in the U.S., and they often work alongside legal immigrants and citizens. All workers are exploited and expected to work for wages for basic living expenses. Despite this, only the work of undocumented immigrants is viewed as inherently exploitative. The solution is never to make us equal but instead to criminalize our ability to work. Our criminalization justifies our persecution, our higher rates of abuse, and maintains a hierarchy of immigration status. A similar dynamic exists around sex work.

My parents came to the U.S. through Temporary Protected Status (TPS) for Hondurans after Hurricane Mitch. TPS offers temporary work authorization to people from certain designated countries so long as you meet its qualifications, including the ideological requirement of not being a communist. Because they were not able to take me with them at the time, I was left with my grandparents when I was 5. My grandmother was murdered during a home invasion. When the news got back to my parents, they saved up ten thousand dollars to pay a smuggling organization to bring me over illegally. That money went to various people, many of them families agreeing to rent out a room in their homes to smuggle migrants, people renting their trucks, or drivers with cars to transport migrants. Finally, a single person was hired to help a group of us cross the border. We were led through dangerous terrain – my smuggler even piggybacked me when I told him I was tired in the desert.

When we were caught in Arizona, my smuggler was punished more harshly than I was. I was fingerprinted, made to pose for a mugshot, and imprisoned by border patrol. Later I was put in Office of Refugee Resettlement/Health and Human Services custody until my parents were located. Years later, when I was a teen, my family told me that my smuggler had been released from his sentence, continued working to provide for his family, and died in a river trying to help others across. I cried for my smuggler and his family. My parents are “human traffickers” for paying him. And I was always, and still am an “illegal immigrant.”

Human trafficking as a concept was created and defined by the UN to address the most extreme exploitative cases resulting from globalization. This is called the Trafficking Protocol/ UN TIP, the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. Originally, the Trafficking Protocol was meant to address the problem of migrants trapped in the global system, but it was appropriated to apply almost exclusively to sex workers.

I exist because of transnational organized crime. I exist at the intersection of two criminalized identities: undocumented immigrant and sex worker. I am part of the underground populations who are underground because we are stigmatized and criminalized. We are not helped by more surveillance and policing, even if that surveillance and policing supposedly primarily target our smugglers, employers and managers.

We must move past the “human trafficking” and “slavery” narratives when it comes to both immigration and sex work. We organically built these underground markets and networks with friends and family to survive and navigate criminalization. Most sex workers enter the industry to escape other forms of labor, or they’re discriminated against and unable to get a “legal” job. This is the case for many migrant and trans women. We stay silent even when abused, because it’s safer for us to not be found. The idea that there are individual evil masterminds that have hijacked the global economy and evaded state authorities for a slave trade is ahistorical and xenophobic. Slavery and trafficking were always and still are systemic issues, in part made possible by the criminalization of unauthorized border crossing.

As an undocumented immigrant and as a sex worker, I am often told that my voice shouldn’t be heard because I’m poor, because I was abused as a child, because I have a “financial incentive.” I am told that because of sexual abuse (which most women in all industries have faced), I can’t speak with authority about my sexuality and work. No other victims of childhood abuse in any other industry suffer from this erasure and silencing except sex workers. I am told that I am exploited, and that wanting to earn money makes me “greedy.” But if you aren’t exploited for your labor under this system, you can’t survive. You can’t pay for housing, you can’t buy food, you can’t provide care for your children. I’m not greedy for wanting to take care of my basic needs and to have a nice life.

Gilda Merlot is an undocumented sex worker from Honduras. She works for Red Canary Song, Red Light Reader, and is a social media coordinator for the NYC DSA.