A high heel replica –the Empower Foundation’s symbol– on a road in Chiang Mai during a campaign highlighting the issues faced by sex workers during the pandemic in 2021. Jittrapon Kaicome/HaRDstories
- 31 May 2023
After years of advocacy, Thailand stands on the precipice of legalising sex work, but the destiny of a draft law remains uncertain, awaiting the approval of a potentially progressive government.
In the waning days of 2021, Thanta Laowilawanyakul, an advocate of sex workers’ rights, stood encircled by journalists and cameras, clutching a megaphone. As the Covid-19 pandemic continued to devastate the livelihoods of thousands of Thai sex workers, her long-standing demands took on newfound urgency.
Thanta, who goes by the nickname Pingpong, gathered with her colleagues from the Empower Foundation and a group of sex workers for a vibrant protest at Bangkok’s Government House, armed with high heels, bikinis, and letters from those unable to attend.
“We are here demanding our rights, not begging for mercy!” one of the letters was read aloud, declaring, “Sex work is not a crime. We are not criminals!”
But sex work is, in fact, effectively illegal in Thailand. Since 1960, it has been criminalised, and those advertising it face potential fines of up to 40,000 baht (approximately 1150 USD) or two years in prison, or both. Despite these restrictions, the industry provides a substantial income for many and is estimated to generate billions of dollars each year.
After decades of advocacy for ending the criminalisation of sex work, Thailand might be on the cusp of legalising the industry. A pioneering draft bill, backed by sex workers and civic groups, aims to establish labour protections, social security benefits, and workplace regulations for sex workers, while addressing enduring human rights issues within the sector.
The draft legislation signals a significant turning point in the country’s stance on sex work, a change driven by the persistent efforts of Empower and other advocacy groups. With the political landscape shifting after the 14 May election, there is much optimism for the formation of a progressive government that supports the legalisation of sex work.
However, while the prospect appears promising, the fate of the proposed law still hangs in the balance. Will the next government support this monumental shift or opt to preserve the status quo, leaving the future of sex workers’ rights ambiguous?
“I just want to work”
The Empower Foundation, founded in 1985, has been a trailblazer in advocating for the rights of sex workers in Thailand. Formed by a group of sex workers and their allies, the foundation’s central mission is to confront societal biases, empower individuals in the sex work industry, and guarantee access to crucial labour rights, healthcare, and social services.
In 2020, the pandemic dealt a severe blow to sex workers and the entertainment industry. The government took measures to contain the virus by closing nightlife venues and massage parlours in March of that year. It was not until May 2022 that bars and nightclubs were legally permitted to fully reopen.
In response to the initial lockdown order, Empower issued an open letter in May 2020, urging state assistance for those affected. As the situation persisted, they called for monthly financial support in April 2021, to be provided until businesses could reopen and sex workers could return to their livelihoods.
But the foundation’s appeals for state support were largely ignored by authorities and the reopening of entertainment venues faced continual delays.
In light of the unrecognised legal status of their profession, most sex workers found themselves ineligible for social welfare and consequently excluded from the government’s emergency support programs. This exclusion spurred Thanta, her fellow sex workers, and Empower to take action, organising the protest in Bangkok to demand compensation, relief measures, and advocating for their ultimate goal: legalisation. The last letter shared during the protest in December 2021 concluded with a simple plea: “I just want to work.”
The pandemic’s far-reaching consequences, which pushed countless sex workers to the brink of financial collapse, highlighted a long-standing argument by advocacy groups: An industry that produces significant income and employs a vast number of people should not be left to operate unregulated and unprotected.
Contemplating class action
The Thai sex service industry is estimated to make a considerable contribution to the nation’s economy. Its exact size remains elusive due to its underground status, but it is widely believed to generate billions of dollars each year. Havocscope, a black market research firm, valued the industry at $6.4 billion in 2015, representing about 1.6% of the country’s GDP for that year.
Disparate estimates of sex worker numbers paint an unclear picture of the industry’s scope. Thailand does not maintain a comprehensive and clear database on sex workers, often muddling the figures with human trafficking data. The United Nations reported about 140,000 sex workers in 2014, whereas Havoscope suggested 250,000 in 2015, ranking Thailand eighth in the global sex trade. The Thai Department of Disease Control estimated in 2017 that 129,000 out of 144,000 sex workers were female. The Empower Foundation estimated 300,000 sex workers in 2016. “They come and go, and the number has been changing all the time,” said Chatchalawan Muangjan, Empower’s legal adviser.
As the government turned a deaf ear to Empower’s requests for aid, Thanta and her colleagues proposed a daring idea: a class-action lawsuit against the state. The idea was for leading plaintiffs to represent all sex workers in the country, advocating for the rights of an entire class of individuals who were similarly affected. If successful, other sex workers could potentially qualify for compensation, eliminating the need to file separate legal claims.
Class action lawsuits are a relatively recent addition to Thailand’s legal landscape. While discussions began in 2002, it was not until 2015 that they were incorporated into the country’s legal system. The inaugural case was filed in 2017 when 308 car buyers demanded compensation for defective vehicles from a major automotive company, with 291 plaintiffs emerging victorious. Since then, more than 100 cases, primarily involving consumer rights and environmental impact claims, have been filed.
But it was only last year that the first class action lawsuit against the state was initiated. Over 200 businesses, including restaurants, spas, massage parlours, and recreational service companies, sued the government for compensation following the forced closure of their establishments.
As Empower geared up for the case, they hired an attorney, invested months in collecting essential paperwork, and assembled a group of sex workers to serve as plaintiffs in the class-action lawsuit seeking financial compensation. But taking legal action against the state proved more daunting than anticipated, facing several obstacles throughout the process.
“Bringing this case to court required not just appropriate documentation and proof, but also the willingness to expose oneself to the public and engage in questioning,” Thanta explained. “A lot of sex workers weren’t at ease with this idea. Even when they were, their employers were not.”
In the end, the foundation decided not to move forward with the case, anticipating a lengthy legal battle in Thailand’s notoriously slow-moving courts. Instead, they redirected their energy towards their ultimate aim: the legalisation of sex work.
Pushing for legalisation
“Empower […] is a community driven by sex workers, founded and operated by us with the goal of achieving legalisation,” said Thanta, who worked in the profession for 20 years. She was sitting in the “Can Do Bar” in Chiang Mai, which the foundation established in 2006 as a model workplace for sex workers.
The bar was shuttered for nearly two years due to the pandemic. During this hiatus, the team took the opportunity to renovate the building, even constructing a brand new museum on the second floor—a dedicated space celebrating the history and intricacies of the sex industry.
Empower and other advocacy groups have maintained for decades that sex work ought to be legalised, thereby recognising it as a legitimate profession eligible for labour protection.
Empower’s written recommendations, published frequently over the last twenty years, assert that sex workers should be “safeguarded by the Labour Protection Act, the Social Security Act, the Workers Compensation Act, and other associated labour laws, in the same manner as other business workers.”
“Sex workers are workers and deserve the protection under labour laws and are entitled to labour welfare,” said Nitirat Sapsomboon, a seasoned social activist and core member of “We Fair”, a group championing social equality. “Laws that hinder them from accessing these benefits should be abolished, such as the Prostitution Act.”
Flawed laws
Thailand’s criminalisation of sex work not only denies social welfare protection to sex workers but also opens the door for exploitation and corruption, according to Chattrika Napatanapong, a researcher at the Thailand Development Research Institute (TDRI), who has extensively studied the sex industry.
“Sex work in Thailand is part of an underground economy, so the law views the profession as an illegal activity,” Chattrika told HaRDstories in an email. “That’s why sex workers are considered no different than criminals committing offences.”
The laws criminalising sex work are a patchwork of direct and indirect provisions nestled within the Thai Criminal Code and the Prevention and Suppression of Prostitution Act. While the Criminal Code does not explicitly penalise sex workers, it does target others involved in the sex trade, such as clients and facilitators.
The 1996 Prevention and Suppression of Prostitution Act, however, takes a more explicit stance. This Act penalises sex workers for activities like soliciting and advertising, while also laying down legal repercussions for those patronising minors and proprietors of sex trade establishments. The overarching intent of this Act is clear: to cast prostitution as an illegal activity, with specific criminal penalties outlined within its provisions.
But despite the official criminalisation, the industry has been thriving openly, often tolerated by the authorities. Its close link with the country’s tourism sector has earned Thailand a notorious global reputation as a hub for sex tourism.
Advocates and experts have long criticised the laws for their lack of clarity, inconsistent enforcement, and failure to protect sex workers from exploitation.
“These legal flaws have led to the authorities enforcing the law in an unjust and corrupt manner,” Chattrika said. “This includes tricking sex workers into providing services and then arresting them to demand bribes. This clearly violates the rights of sex workers.”
A look abroad
Across the globe, the legal status of sex work can be broadly classified into three main categories: criminalisation, legalisation, and decriminalisation.
Legalisation establishes a regulatory framework for sex work, encompassing registration, healthcare, and welfare provisions. In contrast, decriminalisation seeks to remove punitive measures imposed on the profession.
Some countries like Sweden and Norway combine aspects of legalisation and decriminalisation. However, approximately half of the world’s nations continue to enforce the criminalisation model, penalising all parties involved in sex work.
The pandemic highlighted some of the benefits of decriminalisation, with countries like New Zealand and Australia setting an example. In 2003, New Zealand decriminalised sex work, a move that provided a significant lifeline for many during the Covid-19 crisis. The country’s emergency wage subsidy was extended to all workers who experienced a decline of at least 30 percent in earnings due to the coronavirus, including sex workers. To receive relief funds, they simply filled out a form without the need to disclose their occupation, with the relief funds directly transferred into their bank accounts. In Australia, where sex work is decriminalised only in certain states, eligible sex workers had access to income support provided by the Commonwealth Government.
A new dawn?
After four decades of advocacy, Empower and other groups now finally appear to be nearing their ultimate goal. In 2018, a letter from the Foundation to Parliament prompted the establishment of a dedicated committee to review the existing laws on sex work.
At the same time, Thai public sentiment appeared be to shifting towards recognising sex work as a legitimate profession. The catalyst for this shift can be attributed –at least in part– to the youth-led democracy movement in 2020, which successfully propelled the issue into the mainstream, sparking vibrant public discourse.
In Parliament, the Move Forward Party took a notable stance by becoming the first party to embrace the idea of decriminalising sex work. Spearheaded by MP Tunyawaj Kamolwongwat, the party actively campaigned for a sex work registration law, signaling a significant shift in political support for the cause.
Simultaneously, the Ministry of Social Development and Human Security established a committee to review existing laws on sex work, with the Empower Foundation having a seat on the committee. After conducting the review, the committee agreed that the existing laws were outdated and proceeded to draft a new law. By early 2023, a draft law named the Sex Workers Protection Bill had reached its final form.
“The current Prostitution Act has been in place for 27 years; it’s outdated because our society has changed,” said Jintana Chanbamrung, director-general of the Department of Women’s Affairs and Family Development. “Most stakeholders agree that voluntary sex work should not be criminalised.”
The draft bill seeks to legalise sex work and establishes provisions for fair payment, written agreements, and the right to refuse services. The minimum age for providing sexual services will be 20 years. “Sex service providers must be willing to do so. If anyone is forced to provide sex services against their will, it will be considered human trafficking,” explained Narong Jaiharn, a professor at the Faculty of Law at Thammasat University, who was involved in the drafting process.
Additionally, dedicated agencies would be established to provide protection, legal remedies, and occupational support. One such agency could take the form of a high-level committee at the national level. This committee would be led by the minister of social development and human security, alongside key figures from other related agencies. The committee would also include representatives from the Social Security Office, the National Police, up to three sex worker representatives, and up to three specialists appointed by the committee itself.
With the surprising victory of the progressive Move Forward Party in the 14 May election, there is a strong likelihood that the new government will support the legalisation of sex work. While the recently signed memorandum of understanding (MOU) between the coalition parties does not explicitly include the issue, it remains an official policy of the Move Forward Party.
Despite the political uncertainties, Thanta and her colleagues are optimistic that their long-awaited goal will become a reality. Undeterred by doubts, they believe their persistent efforts and advocacy will finally bring about meaningful change.
“If this law goes into effect, hundreds of thousands of ‘criminals’ will disappear into thin air and become regular employees,” Thanta said. “And all those bribes? They’re going to turn into taxes for our nation.”
Edited by Fabian Drahmoune
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