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Judges deny attempt to legalize sex work in CA

by Seth Hemmelgarn

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco has rejected a sex worker group's bid to legalize prostitution in California. The group - Erotic Service Providers Legal Education Research Project - says it's considering requesting a hearing by the full court.

In a ruling issued Wednesday, January 17, the judges affirmed the district court's dismissal of a lawsuit challenging the constitutionality of California's anti-prostitution law, Penal Code 647(b).

A summary from the court's staff said the judges, who in October heard arguments in the case - ESPLERP v. Gascón - found the state's law "was rationally related to several important governmental interests," and doesn't violate the 14th Amendment's "freedom of intimate or expressive association" or "the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection."

The 9th Circuit panel consisted of U.S. circuit Judges Carlos Bea and Consuelo Callahan, and Judge Jane Restani, a senior judge on the U.S. Court of International Trade.

Restani wrote last Wednesday's opinion, which says, "the state proffers specific and legitimate reasons for criminalizing prostitution in California, which include discouraging human trafficking and violence against women, discouraging illegal drug use, and preventing contagious and infectious diseases," including HIV.

ESPLERP filed its complaint in 2015. The group has said the law "unfairly deprives consenting adults of the right to private activity, criminalizes the discussion of such activity, and unconstitutionally places prohibitions on individuals' right to freely associate."

In a news release, Louis Sirkin, ESPLERP's lead lawyer, said, "We're disappointed that the 9th Circuit missed this opportunity to declare, with certainty, 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. ... This case is not over and we are seriously considering requesting a rehearing by the full court."

EPSLERP President Maxine Doogan stated the group has 14 days to file for a rehearing before the full court.

She said it's "mind boggling" that the three judges relied on the 1988 case IDK Inc. v. Clark County. In that case, court staff noted last Wednesday, the 9th Circuit "had already ruled that the relationship between a prostitute and a client does not qualify as a relationship protected by a right of association."

Doogan complained that IDK Inc. v. Clark relied on the U.S. Supreme Court's 1986 Bowers v. Hardwick ruling, which criminalized gay sex.

" ... Both have since clearly been superseded by Lawrence v. Texas, the 2003 Supreme Court case which struck down sodomy laws nationwide," she said.

The named plaintiffs in ESPLERP's lawsuit are "three women who want the right to sell sex" in the state, and one man "who wants to pay for sex," the group has said.

A spokesperson for the state attorney general, who along with San Francisco District Attorney George Gascón and other district attorneys is a defendant in the case, declined to comment on Wednesday's ruling.

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