Violation of the prohibition of non-discrimination by Spanish labour courts when dealing with prostitution

Abstract

The right not to suffer discrimination requires that people who choose to engage in sex work in order to meet their economic needs receive full recognition of their employment and labour rights. This includes prostitution. In this field, however, Spanish labour courts do not adhere to the protective spirit of Labour Law. Instead, they add to the vulnerability of prostitutes by denying them protection. To this end, they apply criteria that are not always strictly legal, relying on wilful arguments that often disregard the law. The result is the discrimination of prostitutes, a collective historically subject to persecution, as no reasonable argument is provided to justify their pejorative differential treatment. The protection of women as a whole -in terms of gender equality-; the need to overcome the social “nuisances”  prostitution causes; the need to fight against human trafficking; the alleged desire to defend prostitutes’ dignity -while paradoxically harming it, as prostitutes are treated as minors-; appealing to these aims, and depriving prostitutes of rights as a means to reach them, does not pass the proportionality test (suitability, necessity and balancing tests) unequal treatment must meet to be considered non-discriminatory. The underlying consideration is that, despite human rights’ universal character, prostitutes cannot be regarded as their holders.