New York Moves A Step Closer To Decriminalizing Sex Work

Last week, Governor Andrew Cuomo signed into law a bill that repeals a decades-old statute that advocates say disproportionately targeted trans people who are simply walking or standing on the street. The legislation also automatically seals any previous arrest records under the statute. 

“It’s a beginning of a new era,” said TS Candii, executive director of Black Trans Nation and a Black trans woman who has likened the statute—often called the “walking while trans” ban—to stop and frisk, the NYPD tactic of randomly stopping pedestrians to look for guns that disproportionately targeted Black and Latinx people. 

The repeal of the 1976 law, which was ostensibly meant to target those “loitering for the purpose of engaging in a prostitution offense,” comes at a time when similar laws are being rolled back across the country. The Seattle City Council unanimously repealed a similar “prostitution loitering” law in June, and California lawmakers are considering pushing for a similar repeal this year. Activists have also started organizing against similar statutes in Atlanta, Chicago, and New Orleans.

Next, advocates in New York plan to move forward on efforts to make it the first state to decriminalize sex work. (A bill introduced in 2019 never advanced.) They’ll also advocate for a bill that would vacate sex trafficking-related convictions from people’s records, and push to defund the NYPD’s vice unit. And they’ll have to compete with a bill in the state legislature that decriminalizes sex work while still cracking down on sex workers’ clients, a model that advocates argue won’t protect them.

“We know we’re going to win because we have a majority” of the public’s support, Candii said. A 2019 national poll of registered voters shows a majority of voters support decriminalizing sex work.

The “walking while trans” statute repeal and sex work decriminalization legislation both stem from a growing movement for sex workers’ rights across the U.S. The same year the decriminalization bill was introduced in New York, another was introduced in Washington, D.C. In the recent election, a number of Democratic presidential candidates embraced the idea of decriminalizing sex work.

Although the “walking while trans” statute was intended to target sex workers, its vagueness allowed police to harass trans people of color, advocates say. A 2016 civil rights class-action lawsuit brought by the Legal Aid Society alleged that 85 percent of people arrested under the statute were Black or Latinx, and that women had been arrested for “wearing a ‘short dress,’ ‘a skirt and high heels,’ ‘tight black pants,’ or ‘a black dress.’” 

Those arrests and charges can make it more difficult to get government benefits or even employment, Candii said. “It leaves them more vulnerable.”

A surge of protests in New York after the police killings of George Floyd and Breonna Taylor, including a 15,000-person rally for Black trans lives last summer, helped bolster the movement to repeal the law. But reform has been a long time coming, the result of years of organizing and activism by Candii and others. 

The law was passed when New York was trying to clean up its image and clear out Times Square, a popular area for sex work. Candii said the law was used again in the 1990s against LGBTQ youth of color to push them out of gentrifying neighborhoods like the West Village. “It has been affecting my community for 44 years now,” said Bianey Garcia, an organizer with Make the Road NY and a trans woman. 

The Legal Aid Society sued over the law in the late 1970s. Organizations like Fabulous Independent Educated Radicals for Community Empowerment, or FIERCE, later started working against it. The law, Candii said, was “like old milk in a refrigerator.”

The movement picked up in 2018, the year that Congress passed two bills—Allow States and Victims to Fight Online Sex Trafficking Act or FOSTA, and Stop Enabling Sex Traffickers Act or SESTA—that sex workers say put them in danger because they led to the shutdown of personals sections. 

“That really reenergized the sex worker community,” said Jared Trujillo, policy counsel at the New York Civil Liberties Union and a former sex worker. 

Advocates thought they had enough support to repeal the ban last spring, but then the COVID-19 pandemic hit, disrupting the legislative session. The repeal bill was never brought to the floor. 

Still, Trujillo said, the Black and Latinx trans women leading the movement “made sure that they were not erased and that their issues mattered.”

“We kept doing things to make sure that the momentum didn’t die and this is something you couldn’t ignore,” Trujillo said.

Activists started “bird dogging” lawmakers, driving up to scheduled events and jumping out in front of the cameras to confront them about where they stood on the legislation, Candii said. “We had to meet them in the streets,” she said, showing them there would be “consequences” if they didn’t support it. They held lobbying meetings with lawmakers and weekly phone and text banks. 

A key ingredient to their success was people sharing stories of their  experiences with police harassment under the law. “Hearing about the true human cost to having the statute on the books really made a difference,” Trujillo said.

Still, “it was very hard for them to speak about this,” Candii said of trans people who were harassed or arrested. “To have to relive it, and relive those experiences, was traumatizing.” She also struggled when she spoke in public. “I was always nervous, my stomach was always flipping and flopping,” she said. 

But the personal accounts made the issue urgent. “Sharing those experiences of how the NYPD stopped us, arrested us just for expressing ourselves, was very crucial,” said Garcia. “We just want to walk free through our neighborhoods, we want to go out and have dinner with our boyfriends or partners without there being arrests.”

Both Garcia and Candii say they have been harassed or even assaulted by police for being trans. 

When Garcia was 18, she said, plainclothes police officers appeared suddenly from an unmarked van as she and her boyfriend made their way home from a bar. Garcia said they pushed her into a wall, emptied the contents of her purse onto the ground, and accused her of engaging in sex work. (Garcia had taken some free condoms from the bar before leaving.) The officers arrested her and she spent the rest of the day in jail, she said. 

It was the first time she was arrested. “Because of my gender expression, the NYPD can arrest me just for being me, for being trans,” Garcia said. “I was so scared, so frustrated. I didn’t know what was going to happen to me.” As an immigrant, she was afraid she would be deported.

Candii recalled leaving a shelter one day, when a police car rolled up beside her. The officer gave her two options, she said: become an informant or perform oral sex on the officer. She did the latter and avoided arrest, she said, but “the trauma, it’s still there.”

Now the repeal of the loitering law makes advocates optimistic that they have built the skills and connections they’ll need to finally decriminalize sex work. “You don’t really see a lot of laws passed that really prioritize trans folks,” Trujillo pointed out. “People who have traditionally not always seen themselves in politics, it lets them know how much political power they have. … It makes you feel like the wind is at your back.”