A Chance To Repeal A ‘Walking While Trans’ Ban

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In 1976, New York criminalized behavior described as “loitering for the purpose of engaging in a prostitution offense.” The statute faced constitutional challenges from the outset. Legal Aid Society lawyers, on behalf of a woman arrested the first day the law was in effect, argued that it was unconstitutionally vague and overbroad and inhibited free speech. Their efforts were successful in lower courts but the case went to the Court of Appeals, the state’s highest court, where the law was upheld as constitutional. In 1977, police made 9,565 “loitering prostitution arrests” in Manhattan alone, reported the New York Times the following year.

This history is recounted in a new report from the New York City Bar Association that was published Monday. With the report, the organization, which has a membership of over 24,000 lawyers, announced its support for a bill that would repeal the statute, Penal Law Section 240.37. Although the number of arrests under the law are a very small fraction of what they were in the 1970s, the statute continues to be part of a larger pattern of criminalization and marginalization.

Because of how Section 240.37 is enforced, it has come to be known colloquially as the “walking while trans” ban. The bar association report looks in detail at how arrests “disproportionately target and impact marginalized communities, in particular LGBTQ people (including runaway and homeless youth), women of color and immigrants.” Enforcement of the law has come to be particularly harmful for transgender New Yorkers “because the police are more likely to mistakenly believe transgender people are sex workers.”

These are the consequences of a statute that, the report says, “provides little to no guidance—and confers broad discretion—in enforcement, and inevitably encourages police profiling based on perceived ethnicity, national origin, and immigration status by permitting arrests of individuals who, according to police, ‘look like prostitutes.’”

Officers are guided by a pre-printed form they fill out to describe the basis of an arrest. The form varies between precincts, according to the report, but justifications encompass myriad activities that have nothing to do with sex work, including “being in an area for a certain amount of time and talking to people; wearing ‘provocative or revealing’ clothing; gesturing to those passing by; having been previously arrested under the statute; and being around people who have previously been arrested under the statute.” Women have been arrested for wearing “jeans and a tank top, or a dress with the bra strap showing, or a hoodie with tight pants.”

The consequences of this enforcement and the latitude afforded police can be grave. If a person who is stopped and searched has condoms on them, those can be used as evidence against them, discouraging people from carrying condoms, a result that runs counter to the city’s broader public health efforts. A trans woman arrested under the statute might plead guilty rather than risk being sent to the men’s jail at Rikers Island, where the risk of sexual assault is high. A guilty plea and conviction in turn can lead to an accumulation of convictions that will affect future employment and immigration possibilities.

For immigrants, the potential consequences of arrests and convictions are alarming. A conviction could lead to losing one’s immigration status, to deportation, and to being denied release on bond if placed in deportation proceedings. Being in immigration detention, in turn, for transgender immigrants, can often mean being in facilities that do not meet ICE’s internal guidelines regarding placement and care of transgender people. The sole ICE detention facility that is run in accordance with these guidelines is in New Mexico.

The push to repeal the “walking while trans” ban was part of a larger decriminalization effort last year, after Democrats took control of the state Senate for the first time in a decade. As Melissa Gira Grant described in an article for The Appeal, the organizers of the coalition Decrim NY, many with lived experience in sex work, successfully pushed for an agenda that put addressing criminalization and policing front and center.

For this year’s legislative session, organizers are starting with the repeal measure, which made it through the state Assembly last year. “The reason why [repealing] ‘walking while trans’ is at the forefront is because it is a bill that should have never been created and never been passed,” Black Youth Project 100 policy and advocacy manager Saye Joseph told Gay City News last week. “And it can pass this session, whereas the larger conversation around decriminalization of sex work will require a lot more political education.”

Last Saturday, Governor Andrew Cuomo, in a speech at the Human Rights Campaign gala, announced his support for a repeal of the ban, saying “this year, we must pass a repeal of the so-called Walking While Trans statute, so that people will no longer be unfairly targeted for what they look like.

Cuomo’s remarks came just two days after the publication of a nationwide poll showing that, for the first time, a majority of voters support some form of sex work decriminalization. Among younger voters, two-thirds support decriminalization. The polls were released along with a report authored by Nina Luo of Data for Progress and published by a coalition that includes the American Civil Liberties Union, Mijente, and the Human Rights Campaign.

Several 2020 Democratic presidential candidates have also lent support to the idea of sex work decriminalization. This is a significant shift at the national level from two years ago when, as Natasha Lennard of The Intercept writes, “every single Democratic presidential candidate who was then in Congress—from progressive Sen. Bernie Sanders to conservative Sen. Amy Klobuchar—voted for a bill that expanded the criminalization of sex work and imperiled sex workers nationwide.” Lennard writes, “While the issue has arisen as more a talking point than a clear policy proposal for the candidates, the positioning away from criminalization is marked.”

In addition to polling, the report lays out the argument for decriminalization. Bianey García of Make the Road New York described her experience of policing in Queens, the heavily immigrant borough that has experienced a disproportionate share of arrests under the statute. “I’ve been arrested four times for prostitution,” she said. “Only once was I actually doing sex work, the other three arrests were just profiling because I’m a trans woman.” Once, Garcia said, she was outside a bar with friends, when police officers jumped out of a van, pushed them against a wall, and searched their purses. “They found condoms, which was apparently enough for them to charge us with loitering for the purposes of prostitution.”