Time For New York State To Repeal Draconian Law
UPDATE: The Walking While Trans Ban has officially been repealed!
Governor Andrew M. Cuomo today signed legislation (S.2253/A.654) repealing portions of a law - known as the 'Walking While Trans' ban - that led to arbitrary and discriminatory policing of transgender women. The law, originally passed in 1976 with the intent to prohibit loitering for the purpose of prostitution, has been used with an extremely broad definition of loitering that led to the arrest of law-abiding transgender and cisgender women of color. Many local district attorneys have voluntarily stopped enforcing the law, recognizing its discriminatory impact.
"COVID exposed low tide in America and the 'walking while trans' policy is one example of the ugly undercurrents of injustices that transgender New Yorkers - especially those of color - face simply for walking down the street," Governor Cuomo said. "For too long trans people have been unfairly targeted and disproportionately policed for innocent, lawful conduct based solely on their appearance. Repealing the archaic 'walking while trans' ban is a critical step toward reforming our policing system and reducing the harassment and criminalization transgender people face simply for being themselves. New York has always led the nation on LGBTQ rights, and we will continue that fight until we achieve true equality for all."
Update: Pressure continues to mount on the New York State Legislature to repeal the Walking While Trans bill.
The New York City Council on December 10 passed two resolutions encouraging the State Legislature to repeal a loitering law used by police to target transgender women of color and seal the records of folks convicted under that law.
The votes were only symbolic, but the resolutions immediately put pressure back on the State Legislature — which is not currently in session — to take action on a long-overdue legislative effort in Albany that has stalled, at least for now, despite sufficient support from both chambers and Governor Andrew Cuomo.
by Kira Lingala
Could you imagine being arrested for how revealing your clothes are, the height of your heels, or how masculine or feminine you look? This is the reality many Trans folks, especially those who are Black or Brown, face in urban areas throughout New York.
This summer, the deaths of young, unarmed Black folks at the hands of police have inspired the most fervent and wide-ranging protests the United States has seen in decades. But events like last June’s Black Trans Lives Matter march in Brooklyn helped shine a light on the unique dangers and obstacles that Black and Brown Trans folks face, especially from law enforcement.
Now, after years of activism and litigation, the New York State Legislature has the chance to make a real difference in the lives of Trans women of color by repealing the draconian and discriminatory Walking While Trans ban.
Despite the damage this 1976 law has inflicted on Trans communities since its passage, many are unaware of what the Walking While Trans ban is.
New York Penal Law Section 240.37 outlaws “loitering for the purpose of engaging prostitution,” but it has fallen hardest on women of color and Trans women, regardless of whether they are sex workers or not.
Of the 152 people arrested under the law in 2018, 80 percent were women, 49 percent were Black, and 42 percent were Latinx. Because the NYPD often misgenders Trans folks and does not gather data on gender identity, it is impossible to put an exact number on how many Trans folks are impacted by the law.
Despite this lack of data, the practices of the NYPD itself reveal the discrimination that harms trans women.
In 2016, the Legal Aid Society brought a class-action lawsuit on behalf of eight plaintiffs, five of whom were Transgender women. In his testimony, an NYPD officer explained how he was trained to look for women with “Adam’s apples,” “big hands,” and “big feet.”
Training officers to look for these characteristics, normally associated with Trans women, is obviously discriminatory, but the NYPD’s other criteria, such as short dresses and high heels, are also bound to impact many women, regardless of whether they are engaged in sex work or not.
Sex workers deserve our respect and support in an environment that is often hostile to them, but it is important to note that repealing the Walking While Trans ban has no impact on the police department’s effort to fight illegal sex work.
The Walking While Trans ban is a “duplicative” law. This means that police officers could arrest unregulated sex workers under existing laws on the books that outlaw solicitation, prostitution, and disorderly conduct. For example, if someone is loitering on a street corner for the purposes of prostitution, it should be possible to charge them with one of the aforementioned crimes.
The only time the Walking While Trans ban would be used on its own is in the event that the police do not have the required evidence to charge an individual with the crime of prostitution.
This is one of the main issues with the Walking While Trans ban—because it is easier to charge someone under the Walking While Trans ban than to charge them with a crime like prostitution, the law leads to more Black and Brown Trans folks being shuffled through the system, even if they haven’t done anything wrong.
While the 2016 lawsuit did prompt the NYPD to change how it enforced the law, the Walking While Trans ban is still on the books and still harming Black and Brown trans folks. Understanding the ways this law impacts some of the most vulnerable members of our LGBTQ+ community is an essential first step to making change, but you don’t have to stop here.
The bill to repeal the Walking While Trans ban currently has support in the New York State Assembly and Senate, but it has yet to be brought to the floor for a vote. As the fall approaches, the State Legislature is expected to turn their attention to the budget. As a result, if the Walking While Trans ban is not repealed as soon as possible, the law would stay on the books until at least January.
Waiting several months for a law to change may be acceptable for those who are not directly affected, but in the meantime, vulnerable Black and Brown Trans folks will be harassed by police officers who deny their identity and placed in a prison system that is cruel and unforgiving to those who fall outside of the gender binary.
It is not an exaggeration to say that for many Black and Brown Trans folks, repealing this law is a matter of life and death. You can help stop the violence today by calling your state senator and assemblyperson, as well as Assembly Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins. If the bill is brought to the floor this session, it could make all the difference to the many Trans folks who simply want to walk down the street.
Kira Lingala (She/Hers/Her) is the Peer Navigator of The LOFT's PROUDWST ME Program. She can be reached at [email protected]
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