HIV Aids

New York’s Notorious “Walking While Trans” Law Has Finally Been Repealed

TS Candii moved to New York City from Tennessee more than two years ago. She was looking for a better life as a Black trans woman. “I heard New York was a more progressive state that stood up for the TGNC [trans and gender nonconforming] community and that I was going to be equal,” she says.

But shortly after she moved here, in June 2018, she stepped briefly outside of the Bronx shelter near Monroe Avenue she was living in at the time to have a cigarette. Then, she alleges, two cops pulled up and beckoned her. When she walked over to them, she says, they accused her of soliciting sex—and then told her they would arrest her on New York State penal code section 240.37 unless she gave them oral sex. Which she did, she says, not wanting to go to jail.

She never tried to report the cops to the New York Police Department, she says, because, “It would be their word against mine, and it’s hard to get someone to believe a Black trans woman. We go through these types of offenses all the time.” But, she says, the incident left her deeply traumatized—and disillusioned about New York City as a haven for trans people.

Then, she says, Elizabeth Owens, an activist (who died recently) with the social-justice nonprofit VOCAL-NY, visited her shelter, doing outreach on the longstanding effort to repeal 240.37. The law, passed in 1976, which technically prohibited loitering, had long been accused of being used by cops as a weapon to harass and arrest people on the street, especially Black and Latinx women—and particularly trans women—whose appearance (high heels, short skirts) cops assumed meant they were engaging in sex work. It was commonly called the “Walking While Trans” law, or “Stop-and-Frisk for Women.” Between 2012 and 2015, 85% of those arrested under the statute were Black or Latinx.

Soon enough, Candii found herself part of the growing movement to repeal the bill. “Suddenly, I was the one spearheading and lobbying and shouting and speaking with legislators, chanting in the streets, walking down the halls of Albany, about this bill,” she said. “And it wasn’t just for me, but for everyone who’d ever been arrested under the law.”

On Tuesday, Feb. 2, the law was finally repealed in Albany by the overwhelmingly Democratic legislature and Gov. Andrew Cuomo. The bill to repeal the law had been sponsored by Sen. Brad Hoylman and Assemblymember Amy Paulin. Lawsuits challenging the law had already virtually ended its enforcement in recent years, but the repeal signaled its death knell—which was called for forcefully in June 2020, when an estimated 15,000 people, most wearing white, rallied in front of the Brooklyn Museum to demand rights for Black and Brown transgender people. The rally is considered the largest specifically for Black trans rights in U.S. history.

On a triumphant Zoom call after the repeal—moderated by Candii—Hoylman and Paulin were joined by other trans activists and their allies, including New York state Sen. Jessica Ramos, assembly members Catalina Cruz and Jessica González-Rojas, and New York City Council member Carlina Rivera.

“Today,” Candii said on the Zoom, “I can’t help but think about the countless TGNC people who were arrested and traumatized over the past 44 years because of this law. I remember reading that within one year of the law being passed, 9,565 people were arrested just in Manhattan—most of them women. … Over the years, this law has been used to profile our LGBT communities and harass our TGNC communities. … So today, to say that I’m happy that this law will finally be repealed and records will be sealed is an understatement.”

She was referring to the fact that the repeal not only wiped the law off the books, but the records of everyone who’d ever been prosecuted under it.

Said Paulin on the Zoom, “I want to thank you all for being fearless advocates, because without you, we would not be here today.”

The repeal is likely to accelerate efforts to repeal similar laws in other states. As reported by The New York Times, “California could introduce a bill to repeal a prostitution loitering law this year, and activists in Chicago, Atlanta, and New Orleans have organized to reverse similar ordinances. Last summer, the Seattle City Council unanimously voted to repeal drug trafficking and prostitution loitering laws.”

Breaking that down further, Kate d’Adamo, a consultant with the group Reframe Health & Justice, puts it this way in an email:

“Not all states have an explicit loitering law, or a law where common behaviors like walking up and down a block [are] criminalized because an arresting officer assumes it’s to engage in sex work. Every state criminalizes prostitution, and almost all include solicitation in that law. ‘Loitering for the purposes of prostitution’ is very much based on behavior and appearance—that would be things like waving at cars, which is what was in New York.

“Solicitation is offering or agreeing to engage in prostitution. So while there may not be a loitering law, which would have a lower bar, women of color and especially trans women of color can still be profiled and targeted by an officer who may simply make an offer to exchange sex for money, and not saying no is enough for an arrest. It’s a slightly higher bar for arrest, but still too low. It also means that under [systems] like End Demand/the Nordic Model, where clients [but not workers] of the sex trade are criminalized, people would still be profiled as a way to look for potential clients to target. On top of state law, though, many cities around the country have loitering statutes in the city code, [such as] Dallas and Phoenix.

“As to campaigns, a lot of the state-based campaigns are moving for full decriminalization [of sex work], though I don’t know of any bills which have been introduced in states with loitering laws, outside of New York. But as of the last few years, there were full decriminalization bills introduced in New York, Louisiana, Vermont, New Hampshire, and D.C. There are a few campaigns right now looking to be the next to add to that list, but I’m not going to point to them until they’re ready to announce. I know there have been rumblings about certain cities taking down prostitution ordinances on the municipal level.”

As for Candii, she says that the next step definitely is to push for full decriminalization of sex work in New York State. With TheShauna Brooks, she’s cofounded the nonprofit Black Trans Nation to work on that issue. But her group, founded right before COVID hit hard, has been mainly focused since on direct aid efforts, such as getting trans sex workers survival funds and hotel vouchers to keep them from having to sell sex during a pandemic. She says the group is in the process of applying for funding from the New York City Council, which in the past few years had made money available to similar trans groups of color.

She lives in Brooklyn now with what she calls her family—four dogs. “Cookie is the mother, Lucas is the father, Cinnamon is the daughter, and LeBaby is the baby.” She erupts in laughter while telling this.

Does she feel she’s in a better place than she was two years ago? “Oh my goodness! I’m now the founder of a nonprofit! To say my life is happy—that’s an understatement. I’m healing. I’m learning how to live again.”

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