BREAKING DOWN BARRIERS

What’s at stake for porn performers on Election Day?

Elena Scotti/FUSION

For decades, porn performers haven’t been taken seriously by lawmakers. Even as their industry has evolved from a quasi-legal enterprise to a fully legitimate business, the stigma associated with sex work has tainted the business in the eyes of government officials and regulators. When lawmakers have created laws to regulate the industry—whether to police obscenity or keep performers safe on set—they’ve rarely engaged its members in conversation, treating them more like delinquent youths than active and engaged business people who deserve to have a say in how their industry is run.

But recently, something has changed. Porn performers have been showing up to lobby government officials in California—and those officials are listening, and taking them seriously. “We’ve demonstrated ourselves to be more informed and professional and ready for discourse than they expected us to be. We’ve really overcome their expectations,” says porn performer and Adult Performer Advocacy Committee president Ela Darling. At long last, performers feel as though they are finally being included in the conversation about the regulation of their industry.

And the efforts seem to be working in the industry’s favor. Recently, political parties in California—the state where the majority of porn companies are based, whose laws have a crucial impact on the industry—have publicly opposed new anti-porn proposals, with a 2014 anti-porn bill full of aggressive regulations dying in committee. “They’re starting to give us a little bit more space and a little bit more clout,” says Darling.

But in the wake of these tenuous wins, the porn business now faces some of its biggest threats yet. This November, California voters will be deciding whether or not to approve Proposition 60, a new “condoms in porn” ballot initiative that could be disastrous for porn performers if it passes, driving production companies out of state, reducing opportunities for work and fracturing the local community and resources that help keep performers safe. Could the little progress porn has made be undone this fall?

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To understand how politically active porn performers went from being treated like a joke and an oddity to a respected force, it helps to have a sense of how the adult industry’s political landscape has changed over the past few years.

Prior to 2009, the biggest legal threats faced by pornographers were obscenity charges—like the kind that landed aggressively taboo porn director Max Hardcore in jail back in 2009—or complex records-keeping regulations requiring producers to maintain extensive (and expensive) records proving no one in their productions was under the age of eighteen. While those threats were scary, particularly for producers who could wind up in prison if their paperwork wasn’t exactly in order, they didn’t really affect performers directly—if someone’s legal ID wasn’t properly recorded by a producer, the performer wasn’t going to take the fall. Likewise, the women who engaged in shocking sex acts with Max Hardcore weren’t the ones who had to worry about winding up behind bars. Because performers themselves weren’t really at risk, they rarely felt the need to show up and get politically involved. As a result, lawmakers rarely had to think about the people whose very bodies and livelihoods might be impacted by their aggressive stances.

But as the aughts shifted into the twenty-teens, things began to change. The AIDS Healthcare Foundation—a nonprofit turned anti-porn lobbying group pushing Proposition 60—turned its sights on the porn industry, launching a number of initiatives that threatened to completely destabilize the business under the guise of protecting performers through draconian, expensive, and often unrealistic regulations.

The AIDS Healthcare Foundation began by petitioning California’s workplace safety officials to more actively regulate condom use on set by explicitly requiring barrier protection. From there, the organization moved into legislation, proposing bills and ballot initiatives on the state and local level that mandate condoms on set, require porn producers to pay for expensive film and public health permits, and potentially leave performers vulnerable to massive privacy violations.

According to the AIDS Healthcare Foundation, and the handful of retired performers they’ve recruited to their cause, these efforts are all about making the adult industry a safer place. But since the AIDS Healthcare Foundation is an outside organization with no direct involvement in porn production, many within the industry have questioned why they should be deemed the arbiters of what counts as on-set safety—particularly since they’ve shown little interest in actually talking to actively working porn performers about what might make them safer.

What would they learn if they spoke with porn professionals? Perhaps more than anything, performers whose work days consist of multi-hour sessions of rough sex would likely report that condom use can mean increased risk of genital irritation and elevated potential for latex allergies—already unpleasant possibilities made more unappealing by the reality that sales data suggests many porn consumers prefer condom-free content. To people in the sex industry, relying on highly effective STI tests—which help detect STIs within days of exposure and help prevent onset infections—is an obviously superior model, and one that keeps performers safe while making their work experiences as pleasant and enjoyable as possible. And data suggests that it’s a system that works: Since the industry standard for STI testing was upgraded after a collection of on-set HIV exposures in 2004, zero performers have reported contracting HIV on a mainstream porn set. (A handful have contracted HIV offset—infections that were then detected and dealt with by the adult industry’s internal testing and HIV response system—but many cite the rapid response to HIV infection as proof that the system works.)

Although the AIDS Healthcare Foundation’s petitions and bills have all ostensibly been about increasing performer safety, protecting them from HIV and other sexually transmitted diseases, performers argue they don’t actually take their needs or desires into account. But even performers who are okay with, or outright prefer, using condoms on set take issue with the actions of the AIDS Healthcare Foundation. Written into the fine print of these laws are regulations that require performers to register with the government under their legal names, increase expenses, and open them up to a whole new world of liability.

Unlike obscenity prosecutions, Proposition 60 threatens to have a direct impact on the working conditions, privacy, and physical bodies of porn performers. And if companies choose to leave the state rather than put up with additional regulations—as a handful have already done, relocating to Las Vegas—that changes how, when, and where performers can find work. These regulations aren’t some vague threat that might one day lead to an expensive court case. They’re everyday rules and regulations that could dramatically change how, and where, porn is shot, and what it means to be a modern porn performer.

“In the past there was a theoretical idea that [laws and regulations] would affect the industry [or] performers, but it wasn’t something that people took all that seriously,” says Michael Stabile, director of communications for the Free Speech Coalition (FSC), an adult industry lobbying group. But that theoretical idea now seems like a very real possibility—and it’s driven performers to organize and make their voices heard, efforts that have finally begun to pay off with government officials.

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For the past three years, the Adult Performer Advocacy Committee—a performer-led organization devoted to giving adult performers organized representation in matters that affect their health, safety, and community—has been bringing performers together as a united front. With the group’s help, more and more performers have been able to navigate the complicated, and often unintuitive, system of petitioning the state government, showing up at committee meetings and advisory board sessions to educate state officials about what the porn industry is actually like: Who choses to work in the industry, what happens during a day on set, and the nuanced and complex realities of what it means to keep your body safe when acrobatic, highly performative sex is how you make a living.

And that education has been essential. Not surprisingly, most state officials aren’t particularly familiar with the inner workings of the adult industry. Like the rest of the country, many of them began these proceedings with the same stereotypical ideas about the kind of people who get into porn—that, as Darling put it, “we’re idiots, that we’re addicts, that we’re sleazy bottom feeding people of the night.” But as porn performers have come out in droves, they’ve made it clear that they’re actual people with legitimate concerns about how ill-informed regulations might impact their health, safety, and livelihoods—concerns that led the state government to abandon a condoms in porn bill known as AB 1576 in 2014 and forced the state’s workplace safety administration to give serious consideration to the industry proposals presented since.

But all those gains could be undone come November. If California voters approve Proposition 60, the state will no longer be a good place to be in the porn business—and for performers who rely on porn to make a living, that could be disastrous. If production companies stay in California, they’ll have to require condoms and other barrier protection on set while paying extensive fees for the privilege—or produce porn illegally and risk putting their privacy, safety, and livelihood at risk. It’s an obviously unappealing prospect for producers, many of whom are making contingency plans to leave the state (or even country) should Proposition 60 pass.

But while production companies themselves might be able to up and leave the state of California (or potentially even the country), individual performers can’t just uproot their lives and follow porn companies wherever they end up. And because of the pervasive stigma against working in porn, it can be hard to find a straight job after years of working in the adult industry. For a number of performers, Proposition 60 could spell the difference between a stable career and livelihood and chronic unemployment: If there are no porn jobs to be had in California, and former porn performers can’t get non-porn jobs (and can’t leave California), the situation could get incredibly grim.

But even for those of us who aren’t dependent on porn for our next paycheck, these laws matter. The more geographically spread out the industry becomes, the more fragmented its community becomes, reducing access to essential support and resources and making the job much less safe for performers. And if Proposition 60 sparks copycat bills, enacting aggressive anti-porn regulations across the country, porn will become more expensive and risky to produce no matter where you are, creating a deterrent for indie producers who can’t afford the expensive permits and risk of litigation—meaning we’ll see much less variety and creativity in the kind of porn that gets made. If you value a safe adult industry where performers are respected and producers can afford to make interesting, exciting porn projects that embrace a diverse range of sexual interests, orientations, and appearances, then these legal fights matter.

If we want the adult industry to be full of responsible professionals who protect one another on set, we need to treat its members as professionals who are worthy of respect—and we need to take their legal concerns seriously.