A Tale of Two Courts: An exploration of MA and Others v France, R v Kloubakov, and the challenges of rights litigation for sex workers

In November 2024, the Supreme Court of Canada is set to hear R v Kloubakov, a case involving two men from Calgary who were convicted under Canada's sex work laws for financially benefiting from prostitution by working as drivers for sex workers. One of a series of cases across Canada, this is the most current attempt to challenge, using the Canadian Charter of Fundamental Rights and Freedoms, some of the provisions of the Protection of Communities and Exploited Persons Act 2014, which "everyone who procures a person to offer or provide sexual services" and anyone "who receives a financial or other material benefit" from sex work". Across the Atlantic, sex workers in France took a case to the European Court of Human Rights, challenging laws that criminalise the purchase of sexual services. In MA and Others v France, sex workers unsuccessfully argued that these laws infringed their Article 8 right to private and family life. The Court found that, given the current state of developments in the domestic law's understanding of the issues raised by prostitution, the French authorities had struck a fair balance between the competing interests involved, and that the respondent State had not overstepped its margin of appreciation.
This paper will reflect on these two cases, examining the arguments presented by the parties and the courts. It will explore the challenges associated with bringing a rights-based claim against primary legislation on sex work, the structural challenges to having sex workers' voices heard and taken seriously, and reflect on the extent to which rights litigation is a fruitful avenue for realising sex workers' rights and social justice.