New York has repealed a law known as the "walking while trans" ban that has been widely criticized for exposing Black and Latinx women to police harassment.
The repeal strikes statute 240.37, which outlaws loitering for the purposes of prostitution from the New York penal code, and seals the records of anyone who has been convicted of the offense, meaning they are no longer publicly visible in most cases. It is the result of years of legal challenges and advocacy from civil rights activists, sex workers, and other criminal justice reformers. The bill passed both chambers in the legislature and was signed by New York Gov. Andrew Cuomo on Tuesday night.
“This very discriminatory law that was enacted in 1976 to, in quotes, 'clean up the streets in Times Square' has morphed into the most discriminatory law in the New York State statute,” said Amy Paulin, the state legislator who sponsored the repeal bill in the Assembly during a press conference on Tuesday afternoon.
Some of the advocates and legislators who supported the repeal were brought to tears during the press conference earlier in the day as they celebrated the imminent passage of the bill, and they recounted stories of abuses by law enforcement under the pretenses of enforcing the law.
“Two years ago when I moved to New York City an NYPD officer used 240.37 to ... force me to perform sexual acts. To this day the trauma is still very real for me,” said TS Candii, a leader in the Repeal the Walking While Trans Ban coalition, who is also a sex worker in the city. “Knowing that no one will ever be profiled or experience trauma like mine again or be profiled because of this law will sure help me and many others move forward with our healing.”
Melania Brown — whose sister Layleen Xtravaganza Cubilette-Polanco died after having a seizure in solitary confinement on Rikers Island after being arrested on misdemeanor assault and prostitution charges and unable to pay $501 in bail — said during the press conference that she was relieved her sister’s death had not been in vain.
“I am very happy that the 'walking while trans' ban repeal has been passed. … Although this does not ease my pain, because my sister should have been here with me, I’m happy that her name is not going in vain, and it’s going to save many other girls from being profiled,” Brown said. “It should never have taken this long for this law to pass.”
The statute has been on the books for about 45 years. It has been characterized as a form of stop-and-frisk for women and trans people because it allows police to stop and search anyone they believe to be engaged in prostitution based on nothing more than their appearance. Years of data show that those police stops have overwhelmingly been used to arrest women of color and trans women in particular. Between 2012 and 2015, 85% of the people arrested under the statute were Black or Latinx, according to language in the repeal bill.
The Legal Aid Society sued the NYPD over the constitutionality of its enforcement of the statute in 2016. That case was settled through mediation, and NYPD revised its patrol guide, which governs arrest procedures, to say that arrests could not be made solely on the basis of gender presentation or clothing. However, arrests spiked in the months afterward. Kate Mogulescu, who was part of the team that brought the lawsuit, told the Brooklyn Eagle at the time that “the most direct path to addressing all of these problems is simply repealing the statute.”
The treatment of sex work and related offenses in the criminal justice system has been the subject of heated debate in New York in recent years. Earlier efforts to repeal the bill had stalled in part because it had been conflated with a broader movement to decriminalize sex work entirely.
Jared Trujillo, a policy counsel at the New York Civil Liberties Union and a former sex worker who has campaigned for decriminalization, told BuzzFeed News that it was important to distinguish between the repeal of the loitering law and the broader debate about how to approach sex work.
“When you look at this statute, it is a direct descendent of Jim Crow vagrancy laws that punished Black folks for merely existing,” Trujillo said. “This is not a sex work statute. Not at all. ... It is a statute that has allowed law enforcement to target people for merely existing, and 85% of those people that they target are Black and brown women of color.”
Black trans people, in particular, face overwhelming odds of incarceration and police harassment. Nearly half of all Black trans people are incarcerated at some point in their lives, according to a study from the National Center for Transgender Equality. And 60% of trans people in New York have experienced police harassment, according to the Human Rights Campaign.
Protests over police violence and systemic anti-Black racism this past summer, including a historic march for Black trans lives in Brooklyn, brought renewed attention to the repeal effort. “When those 15,000 New Yorkers chanted outside the Brooklyn Museum that Black trans lives matter, we heard you,” said Brad Hoylman, who sponsored the bill in the New York State Senate.
While similar statutes exist around the country, New York is the first state to repeal such a law, according to Hoylman.
The repeal and sealing of old conviction records under the loitering charge reflect the will of a wide coalition of lawmakers and advocates, but any additional changes to the laws governing sex work remain a matter of dispute.
In the absence of broader legislation, some district attorneys have also chosen to take matters into their own hands. Brooklyn District Attorney Eric Gonzalez announced last week that he would decline prosecution or dismiss all prostitution cases in addition to any cases under the loitering statute. He has called for conviction records under both statutes — of which there are more than 25,000 in Brooklyn alone — to be expunged as well.
Some of the advocates who spoke at the Tuesday press conference said they plan to continue pushing for full decriminalization of sex work, which they say is necessary to ensure the safety of sex workers and prevent abuse by police.
Jessica Ramos, another state senator, has been an outspoken proponent of decriminalization and called for continued focus on the issue.
“Now that we are passing the 'walking while trans' [repeal]," she said, "we need ... to decriminalize sex work to make sure that our sex workers are recognized as the workers they are and that they are able to do their work in a safe way.”