Advocates of legalized prostitution may now get their chance to overturn California’s 145-year-old ban on commercial sex thanks to a decision Thursday by the 9th Circuit Court  of Appeals in San Francisco.

Three former prostitutes, a would-be client, and the Erotic Service Providers Legal, Educational and Research Project, brought the case. According to the San Francisco Chronicle, the plaintiffs argued the prostitution ban violates the right to engage in consensual sex, as described in a 2003 U.S. Supreme Court ruling that overturned laws against gay sex.

U.S. District Judge Jeffrey White of Oakland rejected their argument last year, saying the 2003 court ruling only protects intimate personal relationships, not commercial sex. He also said the prostitution ban was in place to keep women safe, stop human trafficking, and limit the spread of sexually transmitted diseases. 

But Thursday’s three-judge panel indicated times have changed and it’s time to review the law again. 

“Why should it be illegal to sell something that it’s legal to give away?” Judge Carlos Bea asked.

Judge Consuelo Callahan agreed, saying prostitution, like homosexuality had been “subject to moral disapproval.” He further argued that because the 2003 Supreme Court case dealt with “individual rights,” the right to sell one’s body for money could be “a natural extension of Supreme Court precedent,” she said.

However, Deputy Attorney General Sharon O’Grady said the difference between the legalization of gay sex and the legalization of prostitution is “the commercial aspect…the commodification of sex.”

“The state is not telling anyone who they can sleep with,” O’Grady said referring to the 2003 ruling on gay sex being used as precedent in this case.

O’Grady’s line of thinking lines up with what Judge Jeffrey White ruled a year earlier on the difference between personal and commercial sex – and that prostitution is “an easy place to draw the line” to protect women against violence, drug use and trafficking.

 

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