The Official (And Very Belated) Review Of The Cal-OSHA Hearings (And How This "Weinstein-Gold-Lubben Model" Could Become Nationwide Very Soon)

I apologize for not being able to put this up earlier, due to work and time constraints.

Well, the first round of hearings over Cal-OSHA's proposed condom mandate/barrier protections has come and gone, and if the reaction by adult performers is of any indication, these regs are the most basic threat to porn performers' livelihoods since the LAPD busts of the 1980s.

Problem is, though...if the reaction of the Cal-OSHA officials heading the meeting are clear, performers' opposition simply won't matter, since the fix is already basically in.

And worse yet, these regulations could very well be extended nationwide without much of any feedback or protest.

I'll get to the worst case scenario later on..but first, a look at the proposed regs themselves as presented by the panel at the June 7th meeting.

Essentially, the regs would follow this template:

1) Adult performers and producers would be declared to be "employees" under Cali workplace laws in order to place them under the jurisdiction of Cal-OSHA's workplace protection regulations. Before then, adult performers were assumed to be "independent contractors", which are exempt from such protections under Cali state law.

2) Then, using the "employee" declaration, Cal-OSHA would envelop all porn performers into their new "barrier protection" scheme of STI prevention, mandating full barrier protection (read that to mean condoms, dental dams, and other means of "barriers") in place for performing any live sex acts during porn shoots. Essentially, that would totally ban all bareback intercourse involving P/V and/or anal sex, and, in the original proposal, oral sex as well (more on that anon). This would also ban external ejaculations (the dreaded facials or shots to other body parts), as well as internal ejaculations without barriers (such as "creampies" or swallowing sperm). "Manual sex" (involving masturbation or handjobs/self-stimulation) is not covered at all in the regs; but its status is not well known, and none of the Cal-OSHA staffers at the meeting could clarify their status.

3) The requirement of testing for STI's would be waived entirely, since under Cali antidiscrimination law you cannot test "employees" or ask about their STI status without their approval. Apparently, Cal-OSHA feels that the barrier protections would suffice such in preventing STI transmission that testing would be a moot point. Most active performers would probably disagree...and those  who packed the meeting did so quite directly and forcefully.

4) There is a caveat, though, Cal-OSHA did propose an amendment to the regs which would have exempted oral sex (fellatio and culliningus) from the "barrier protection" requirements, but with the provision that the performers wanting such without "protection" would have to (1) endure the entire passage of Hepatitis B vaccine shots; and (2) be certified to be "fit" for performing by a licenced physician via medical tests...and verification would have to take place within 2 weeks of performing that particular scene. For EACH oral act.

The bottom line on this would be that performers would have to not only wrap up (or dam up) in all porn scenes, but they would lose the system of preemptive testing that has mostly worked to keep STI+ (and especially HIV+) performers from performing to begin with. Basically, the current standard for gay male performers, which assumes that most performers are indeed infected and uses mostly condoms to contain the spread of STI's, would be imposed on the hetero porn industry, with no respect whatsoever for performer preferences or even the concern for performer health.

And, of course, this flies directly in the face of consumer preference, and actual sexual behavior, which tends not to buy into condoms or dental dams as a means of both "destroying the fantasy" and depicting actual sex in real life. (All those who use dental dams during sex, raise your hand. OK...all you married couples who have actually used a condom for oral sex...raise YOUR hand. Right.)

Since folks like Mark Kernes and Danny Wylde, commentators like Dr. Chauntelle Tibbals, and performers like Ela Darling, Shy Love, and Nina Hartley (all of whom attended the meeting and gave testimony) have already posted their thoughts on both the regulations and their impacts on performers, I will simply cede to their excellent reviews of the hearings, which I have linked. (Plus, I'm pretty damn sure that our contributor here Ernest Greene has more than a word or two or 1,000 to say on this matter, since he also dueled with the Cal-OSHA commisars there as well.)

For now, I'll just give my very own non-expert, pro-porn activist brain droppings on these regulations. The short two word response: They SUCK. (And not in the good way.)

OK...you want more than two words?? Here I go:

Deborah Gold and her staff may THINK that these regs are designed to protect performers, but the actual reality of shooting porn basically resolves to the opposite conclusion: that these regs are designed deliberately to destroy and annihilate porn produiction in California by imposing impossible conditions for shooting effective and profitable porn content. Do they really think that in the heat of passion, performers will simply stop themselves in the middle of a scene and put on goggles or wrap a condom around or break out the dental dam?? Don't they understand that the real point of porn is barely controlled lust and sexual desire, and that imposing artificial barriers to that desire will tend to break the lust bond between performer and consumer/viewer that gives porn its appeal??

These restrictions would simply reduce sexual portrayals to the level of bad softcore, where actors who barely touch themselves and are not even encouraged to even have erections would simply fake passion for the camera. Not to say that there aren't some beautiful softcore performers out there who can act out sexual passion pretty well, but most people who watch porn would rather see real hard penises and real vaginas and real people engaging in real, sweaty, lusty, and even dirty passionate sex. It's all about vicariously feeling the passion they see on screen....and only bare skin-on-skin contact (and the allure of the "money shot" and the actual orgasm can convey to the viewer that realism of sex. No bit of "safe sex" education or attempt at "role modeling" people to use condoms will change that fact. (And, it's not as if condoms aren't already readily available to the public as a prophalytic or a pregnancy prevention method.)

The attitude of the more "liberal" advocates of these regs appears to be "If we can force porn performers to be coerced guniea pigs for "safe sex" education, then we can get more people to use condoms and dental dams and other forms of "protection"...and STI's will be a distant memory. Yeah, right...and if we simply take away everyone's cars and only provided rail-based transit and bicycles as the sole means of
transportation, then all our energy needs would be licked, global warming would cease, and the world would be a much happier place. Of course, the risk of performers not knowing whether or not their partners are indeed STI free, or the risks of condoms tearing or breaking during a scene, or the minor threat of condomized sex causing microabrasions of a woman's vagina making her even more vunerable to injury or infection...all that is inmaterial to the broader goal of "protection". And of course. it's all done "for your own good"..as if performers are merely children or out-of-control sluts incapable of any means of self-protection or self-autonomy over their own choice of protection.

Then there is the protection of crossover gay male talent like Cameron Reid/Derrick Burts from any means of preventative testing, the ability of shysters like Mike Weinstein of AHF to monopolize the "testing" regime by converting porn studios into cash cows for his condom-only regimen; the complicity of a few "sex-positive" producers like Tony Comstock to sweep in with his special brand of "married couple' porn and pick off the charred bones of the industry...the hidden agendas could build a book of their own.

For the more "conservative" proponents of these regs (read, Ministeress Lubben and her Pink Cross Foundation groupies), the motivation is much darker; they simply want to drive porn out of California, if not out of America totally; and these regs would certainly be a step in that direction. More than likely, though, performers denied their rights to shoot scenes in California would simply either go to more porn friendly confines (such as Las Vegas or Phoenix or South Beach in Florida or maybe even San Francisco) in order to make their living. Or, they could simply downgrade themselves to making private Internet-based porn content out of their homes. Or...they can simply go underground and continue to make bareback sex scenes under the radar and attempt to stay one step ahead of the Cal-OSHA posse or the LAPD "obscenity" squad...but without any means of protection from not only STI's but even abusive and/or ripoff producers.

All in all, this "Weinstein-Gold-Lubben Model" of porn regulation is just about as effective in regulating out of business porn performers as the "Swedish Model" of punishing men for even thinking about patronizing sex workers is for prostitution and other forms of sex work.  The only difference between the two is that at least the Cal-OSHA regs are only set to take place in California.

At least, for now...but because these regs have to get the approval of the federal branch of OSHA before they could take effect, that has their proponents dreaming of even bigger fish to fry...as in making these regulations take effect nationwide via the federal OSHA code. That certainly would undercut the argument of the industry leaving California for other places....but I wonder how porn performers currently working in South Florida would feel if they had federal officials raiding their homes due to regulations they had no say over. Especially, in the wake or the dominant anti-regulation fervor of the TeaPublican era??

Folks, this isn't just Cali's war on porn...it's national. And it won't just be pornsters in Cali affected...but all of us. Time to step it up and fight like hell before we lose it all.


Note: A report on the Cal-OSHA hearing from Shaya Tayefe Monajer of the Associated Press can be found here (via BakersfieldNow.com). Also, see the perspective of adult film lawyer Michael Fattorosi.(who happens to also be the husband of Black performer Vanessa Blue) via his Twitter stream here. A rundown of tweets concerning the hearings can be found here; and also note reaction articles from both The Free Speech Coalition and XBiz.com.  Finally, for now, there is th LA Weekly blog article, which is here.