After years of pressure from activists, the New York State legislature is expected to repeal the “loitering for the purposes of prostitution” law this week. UPDATE, February 2nd: Both houses of the legislature passed the bill on Tuesday—and Governor Andrew Cuomo signed it quickly after receiving it. [See update below]
The statute was implemented in 1976, and has been used by police to disproportionately target Black and Latinx trans women for suspected sex work. Transgender activists coined the term “walking while trans” over their shared harassment under the statute. Legal scholars have called it a “gendered stop-and-frisk.”
While its difficult to obtain data on how many trans women have been impacted under this statute due to police misgendering, anecdotal surveys from Amnesty International and the Human Rights Campaign suggest transgender people have been most impacted by the statute. According to HRC, more than 60% of transgender New Yorkers have experienced police harassment. Further, the HRC says 83% of people charged with loitering for the purpose of prostitution have been Black women. In 2017, the NYPD did loosen their enforcement, however some boroughs, like Queens, saw an uptick in arrests after the patrol guide changes were in place.
What’s Different This Time?
This is the third time since 2017 that a repeal proposal has had momentum in the state legislature. The difference in lawmaker support this time around can be attributed to renewed pressure from last year’s George Floyd protests, which drew nationwide attention to systemic racial injustice. A supermajority in the state legislature also helps, as does some vocalized enthusiasm from Governor Cuomo.
This is the first version of the bill to call for the sealing of prior convictions, which would prevent a conviction from being made available to the public and most employers. The conviction still exists, but in most cases will not be reported as part of a background check for employment, housing, education, and immigration.
“This gives us a way for being able to file for employment and feel as though we could file for housing and not get worried about getting evicted because of our background,” said T.S Candii, a trans-rights activist, who has been a vocal leader in the Walking While Trans repeal, after being stopped by police in 2017 in the Bronx while smoking a cigarette outside.
A person’s first “loitering for the purposes of prostitution’’ (LLP) charge is considered a violation. However, unlike all New York violations and traffic infractions (except a ‘driving while ability impaired’ charge), an LLP violation is not automatically sealed after a year.
“Even though this isn’t a prostitution statute...because this has the word ‘prostitution’’ attached to it, it is considered—by the people [who] hold the keys to necessary aspects in life—as more serious,” said Jared Trujillo, the policy counsel for the New York Civil Liberties Union.
While in some cases individuals with access to legal assistance and money can petition the courts to have their LLP violation sealed, the majority of people charged under the statute do not have that privilege. “By having this simple violation as something that never seals, you erect another barrier for really no reason, except for poor legislative drafting that led this law to be treated differently than any other violation in the book,” said Trujillo.
Trans-Immigrants
The impact of an LLP violation or the potential of one can be a tremendous burden on immigrants and asylum seekers.
Aneiry Zapata is a 24 year-old Garifuna transgender woman from Honduras. Zapata did not feel comfortable speaking to her immigration status, but she has worked as an advocate for trans-asylum seekers in the city since she moved to Queens five years ago.
Last year, Zapata called the police while she was in her apartment with her mom’s boyfriend because he was acting aggressive towards her. Speaking in Spanish, she said that police officers arrived four hours later, “I was in my pajamas and they asked me if I was a sex worker and they didn’t believe that I was in my own house.” Zapata said she had heard of friends being arrested by police off the street because they suspected them of sex work. Since being profiled as a sex worker, Zapata says she wants some of the protection that comes with sealing a violation if she were to be arrested for loitering.
New York City’s sanctuary policy prohibits local law enforcement from collaborating with Immigration and Customs Enforcement officers in most circumstances. However, under U.S immigration law, a prostitution-related charge could be considered an aggravated felony or a ‘crime of moral turpitude.’ This could lead to deportation, in addition to being barred from getting asylum. Having an LLP charge sealed, or expunged, could re-open up the asylum process for some trans women immigrants who might face persecution or death in their former country.
In Queens, more than half of the LLP arrests occurred in 2018 among a large population of trans-women immigrants. The Caribbean Equality Project helps dozens of trans-asylum seekers in the borough. “We work with clients that genuinely possess a type of fear that they are going to be deported or denied asylum based on if they stay out too late and a police officer reaches out to them,” said policy advisor for the CEP Kadeem Robinson.
Due to this fear of deportation within the community, Robinson believes that prior convictions should be expunged, and not just sealed. “There should be no debate around expunging—frankly—the records of such a law that we know has been used to target trans immigrants,” they said. (Robinson uses they/them pronouns and identifies as nonbinary.) However, in some immigration and asylum cases, the federal government may not accept the state’s expungement of criminal records and the same can be true when it comes to sealing.
In December 2020, the New York City Council paired their resolution for the Walking While Trans repeal with an additional resolution calling on sealing convictions. Last week, Brooklyn District Attorney Eric Gonzalez announced that he would be dismissing “all outstanding prostitution-related warrants,” or about 262 in total with 79 being loitering for the purposes of prostitution arrests. In a statement, Gonzalez also called on lawmakers, “I am asking the legislature to expunge past prostitution convictions so they will not hold people back from opportunities for a better future.”
State Senator Brad Hoylman, who sponsored the bill in the Senate, said he hoped that sealing prior convictions would remain part of the bill. And Assemblywoman Amy Paulin, who is sponsoring the bill in the Assembly, noted that it was after speaking with activists that the sealing language was put in the legislation, so she is happy it is included.
Activists will be waiting to see what happens after the final floor vote on Tuesday in the State Senate.
“No podemos hacer lucha en la calle si no podemos andar en la calle,” said Zapata. Translation: “We can’t fight in the street, if we can’t walk in the street.”
Update, February 2nd: Governor Cuomo Signs Repeal Into Law, After State Legislature Passes Bill
On Wednesday afternoon, New York State legislature has voted in favor of repealing the statute. The legislation will also seal the prior convictions of those with the violation on their criminal record.
There was little opposition in both houses to the bills sponsored by Assemblywoman Paulin and State Senator Hoylman. Some Republican lawmakers took issue with the bill by choosing to conflate ‘loitering for the purposes of prostitution’ with actual sex work; however, there was some bipartisan support.
The bill passed in the Assembly 105-44 and in the State Senate: 43- 20. Now it just need Cuomo's signature to become law.
Just after 6 p.m., Cuomo announced he signed the bill. "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," he said in a statement. "New York has always led the nation on LGBTQ rights, and we will continue that fight until we achieve true equality for all"
