Gov. Andrew Cuomo signed legislation Feb. 2 that repeals the section of New York State Penal Law establishing the crime of loitering for the purposes of prostitution, commonly known as the “Walking While Trans” (WWT) ban. Assemblywoman Amy R. Paulin, who represents Scarsdale, sponsored the bill in the New York State Assembly. Brad Hoylman (D-27) sponsored it in the Senate.
The WWT law, enacted in 1976 but now repealed, permitted police to arrest people based on an assumption that they are occupying a public space with the purpose of engaging in prostitution, even if the assumption is not evidence-based. The statute allowed arbitrary observations such as one’s dress or appearance as grounds for arrest. Police reports cite “wearing a skirt,” “waving at a car” and “standing somewhere other than a bus stop or taxi stand” as reasons to make an arrest under the WWT law.
The law disproportionately affected transgender women, particularly trans women of color. In a 2016 class action lawsuit brought by the Legal Aid Society challenging the law, five of the eight named plaintiffs were transgender women of color arrested for simply standing outside, speaking to one another, or walking home from the subway or grocery store.
“A woman can be improperly arrested and detained simply because an officer takes issue with her clothing or appearance,” the Legal Aid Society wrote in its lawsuit. The suit listed examples of women who have been targeted: “women assumed to be loitering for prostitution because they were wearing a ‘short dress,’ ‘a skirt and high heels,’ ‘tight black pants,’ or ‘a black dress.’”
In 2019, 57 people were arrested under the WWT statute, of which 53% were in Queens and 23% were in Brooklyn, according to data from the New York Department of Criminal Justice Service (DCJS). Of the 152 people arrested under the statute in 2018, 80% were women, 49% were African American and 42% were Latino, also according to DCJS data, with more than half of the arrests in New York City taking place in Queens. In 2013 and 2014, the advocacy group Red Umbrella Project found that in one Brooklyn court 94% of the defendants charged under the law were African American.
In 2020, only six arrests were made under the WWT statute — further underlining the archaic nature of the law and need for its repeal.
Compounding the problem of discriminatory and arbitrary arrest, transgender people frequently experience physical, sexual and verbal abuse at the hands of police. Sixty-one percent of transgender New Yorkers recently surveyed were subjected to police misconduct, including incidences of sexual assault, while a similar number of respondents reported that their experiences of police harassment discouraged them from seeking the assistance of law enforcement altogether.
“The harassment prompted by the current law [now repealed] has been borne heavily by victims of human trafficking, and abused and exploited women, and does not reflect the reality that these victims deserve our help and support to escape their harmful environments, rather than submit them to further harm and degradation. The Legislature’s passage of this bill will thankfully repeal our draconian and deeply harmful current law,” said Paulin.
Support for passage of the legislation to repeal the WWT ban was extensive and broad-based.
Westchester County District Attorney Mimi Rocah, a Scarsdale resident, said, “Identifying potential law breakers by the way they look or the clothes they wear, rather than based on their actions, is the exact opposite of the way our justice system is supposed to work. That’s why I strongly support the immediate repeal of New York State’s ‘loitering for the purpose of engaging in a prostitution offense’ law. This statute … has been widely used to target trans individuals, especially trans women of color. Using a law like this to single out specific individuals in our community does long-lasting harm not just to those who are targeted but also to the community at large, by feeding the perception that the entire justice system is biased and unfair... That is why I am proud to join the Repeal #WalkingWhileTrans Ban coalition and other advocates as well as fellow members of the District Attorneys Association of New York State…”
Now that the WWT ban is repealed, Tina Luongo, attorney-in-charge of the Criminal Defense Practice at The Legal Aid Society, said New York State is “finally relegating this biased law to the history books, one that has stigmatized and dehumanized Black and Brown TGNC individuals, sex-trafficking victims, and sex workers for over 40 years…. Both the repeal and sealing provisions are critical to remedy past harms and necessary to ensure that race and gender presentation are not further criminalized.”
Sanctuary for Families, a leader in combating sex trafficking and all forms of commercial sexual exploitation in New York State, strongly supported the legislation to repeal the Walking While Trans ban. Dorchen A. Leidholdt, director of the Center for Battered Women’s Legal Services for Sanctuary for Families, said, “Eliminating this problematic law does not weaken in any respect our state’s strong anti-trafficking laws, which Sanctuary has successfully advocated for and works to implement. Instead it prevents the targeting for arrest of vulnerable people, typically young women of color and members of the LGBTQ community, on the basis of their appearance or to meet an arrest quota. Rather than strengthening law enforcement response to trafficking and commercial sexual exploitation this misguided law undermines it by intensifying mistrust of law enforcement by high risk communities and the victims in them who need police protection and assistance.”
Sonia Ossorio, president of the National Organization for Women of New York, said, “Amy Paulin has led this charge and her steadfast advocacy to end this abusive practice and right this wrong is a testament to skill as a legislator and her commitment to human rights.”
— Submitted, with reporting by Valerie Abrahams