Ontario Exotic Dancers Deserve Right to Twerk

By Sean O’Donnell
These blog posts are meant to provide educational content and are not to be taken as legal advice.
This article was originally published by The Lawyer’s Daily  (www.thelawyersdaily.ca) a division of LexisNexis Canada Ltd.

Work Safe Twerk Safe (WSTS) is a Toronto-based, peer-to-peer advocacy group that represents the interests of strippers throughout Ontario and strives to protect the dignity, safety, livelihood, and autonomy of strippers in the province. On Monday, October 26, 2020, WSTS brought an application for judicial review in response to Ontario’s decision to enact legislation closing strip clubs in September and October due to COVID-19. 

The application addresses various concerns, including the violation of the Canadian Charter of Rights and Freedoms (Charter) rights to life, liberty and security of person; the principles of fundamental justice, fundamental freedoms, including free expression and association; and privacy rights. Additionally, the application considers the jurisdiction between the different levels of government, and substantive rights and procedural fairness concerning marginalized and vulnerable groups. 

WSTS is not disputing the government’s autonomy to close businesses as a measure to prevent the spread of COVID-19. At issue, rather, is the discriminatory nature in which strip clubs have been targeted. WSTS stated publicly that they felt “the decision to close strip clubs specifically relates to discriminatory and stereotypical assumptions about strippers as vectors of disease”. 

These devastating assumptions are further perpetuated by negative public assertions, and particular to Ontario, by the sensationalized media coverage of the outbreak of COVID-19 in two Toronto strip clubs in August and September; a potential reason for the government’s decision to announce the closures. Strip clubs are being treated differently to similar establishments such as bars and nightclubs during COVID-19, despite their willingness and ability to adopt comparable protective measures. Furthermore, other businesses, and specifically casinos, have been allowed to re-open while the closure of strip clubs has been extended. The actions of the Ontario government therefore present themselves, prima facie, as discriminatory.

The question that arises for strip club owners and employees is: what remedy is available? From an employment law perspective, strippers are not granted sufficient protection under the Ontario Human Rights Code (OHRC) and the Canadian Human Rights Act (CHRA). The OHRC prohibits discrimination against a person in their employment, based on a listed ground. Strippers could potentially argue discrimination on the ground of gender, given that the overwhelming majority of strippers are female. However, this approach does not account for males in the industry and fails to target the core issue underpinning the discrimination advanced by the Ontario government. The CHRA also fails to provide protection to strippers due to its jurisdictional parameters. 

The targeting of strip club employees during COVID-19 is reprehensible, discriminatory, and reflective of a deeper societal bias towards strippers, and more broadly, towards sex workers. Strippers and sex workers are being forced into a vulnerable position due to the Ontario government’s recent decision to close strip clubs. 

These government measures are reflective of a broader trend that has emerged during the pandemic; the most vulnerable individuals in society are being disproportionately affected by workplace closures, while ‘white collar’ employees and businesses are not struggling in a comparable manner. Sex work is real work. Unfortunately, Ontario has failed to acknowledge this truth.