New York finally gets rid of its 'walking while trans' ban after 45 years

New York state repealed a 1976 law on Tuesday that criminalized what it called “loitering for the process of prostitution” and gave police broad power to judge the appearance of people on the street when making arrests.

For decades, the law facilitated the profiling of women of color and transgender women of color in particular for simply standing on the street, leading it to be widely referred to as the “walking while trans ban.” A woman could also be targeted by police merely for standing in a “prostitution-prone” location or standing near a car.

Gov. Andrew Cuomo (D) signed the legislation hours after it passed the state legislature.

Make the Road New York, which advocates for immigrants and working class people of color and has called for the law’s repeal for years, shared comments from trans women who were relieved that the state had finally rolled back the law.

Jocelyn Simonson, a law professor at Brooklyn Law School, whose work focuses on criminal law and criminal procedure, tweeted that the change was the result of “decades of organizing and education.”

Jeyssi Montiel, a trans woman from Mexico, said she was “happy because repealing penal code 240.37 is something that we have fought for a long time.”

“…[W]e will no longer be afraid of being arrested for the mere fact of going out on the street, for dressing sexy or feminine,” she said.

TS Candii, a sex worker and one of the advocates leading the fight against the law, said a police officer had used the law to “force me to perform sexual acts.”

“To this day the trauma is still very real for me,” Candii said. “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.”

Eight-five percent of those arrested under the law between 2012 and 2015 were Black or Latinx.

Resistance to the 1976 statute was immediate. Legal Aid Society lawyers argued that the law was unconstitutional after a woman was arrested on the first day it went into effect, according to the Appeal. In 1978, a New York Appeals Court upheld the law anyway.

Organizations focusing on advocacy for LGBTQ people, immigrants, and people of color have raised awareness about the law and its effects for years.

In 2014, Make the Road New York shared stories about how the law had affected New York women’s lives, including one woman who was targeted in a sting operation after she leaned forward to hear what a man in a car had said to her. The woman had been walking to meet at friends at a restaurant at the time.

The Legal Aid Society has also continued to challenge the law. In 2016, it brought a class-action lawsuit that eventually forced the New York Police Department to change its patrol guide in 2019.

There was a renewed push in the state in 2019 toward decriminalizing sex work, which was linked to the fight for racial justice and LGBTQ equality; those groups had historically been targeted by prostitution-related laws, regardless of whether they were in sex work.

The death of Layleen Polanco in 2019 also brought attention to the issue.

Polanco, an Afro-Latinx trans woman, died at Rikers Island after she was placed in solitary confinement while being held on bail related to 2017 misdemeanor drug and sex work charges.

Advocates said that trans women like Polanco, who are are often profiled for prostitution-related offenses, would be safer if they were not held in jail in the first place, as they are particularly vulnerable to violence from inmates, guards, and a lack of appropriate health care — and the “walking while trans” ban put them at higher risk of being subjected to those conditions.

Lambda Independent Democrats of Brooklyn, which works to encourage LGBTQ people’s participation in local politics, called for the end of the law soon after Polanco’s death. On Trans Remembrance Day, in November that year, state senators advocated for the repeal of the ban. One of those senators, state Sen. Brad Hoylman (D) sponsored the Senate bill that eventually got rid of the law.

Published with permission of The American Independent Foundation.