Andrew Cuomo may not realize it, but the repeal recognizes that police interactions with marginalized people are sources of harm.
After years of tireless organizing, advocacy, and struggle led by trans women of color, the state of New York has finally repealed the pernicious anti-loitering statute that was widely known as the law against “walking while trans.” On Monday, New York Gov. Andrew Cuomo signed legislation to remove sections of the law, on the books since 1976, that were intended “to prohibit loitering for the purpose of prostitution.” Broad and vague, the statute has been used as grounds to profile, harass, and arrest women of color, especially trans women — with ruinous and deadly consequences.
The repeal works toward removing grounds for police to intervene in peoples’ lives. This is the undergirding logic of calls to defund the police.
A victory is a victory, and this repeal was hard won. Yet while Cuomo is seeking to frame the new legislation as a means to protect “innocent” women from being targeted in the otherwise justifiable policing of sex work, the repeal of the “walking while trans” ban should instead be seen as a step in the abolitionist struggle to defund the police and decriminalize all consensual sex work. Justice is not a world in which only real sex workers — disproportionately trans women of color, who face discrimination in other industries — are considered legitimate targets for the police.
The repeal of the discriminatory “loitering” statute is of major significance in and of itself. In 2018, 91 percent of those arrested under the law were Black and Latinx people. “As a trans woman, I will be able to feel safer walking through the streets of my neighborhood without the police bothering me or arresting me for my gender expression,” said Norma Ureiro, a member of immigrant and working-class rights organization Make the Road NY, in a statement. “I am a trans woman from Mexico, I am happy, and I want to cry! I know that the struggle we are leading is bearing fruit,” said Silvia Escobar, another Make the Road NY member.
In a separate op-ed for the New York Daily News, Ureiro made unambiguous the central danger of the “walking while trans” ban, elucidating the framework in which its repeal should be seen. “Repealing the Walking While Trans ban is a crucial step toward stopping interactions with police and reducing the criminalization of our community,” she wrote. This is key. The victory is not one of ensuring that the police better identify sex workers, but rather that the repeal works toward removing grounds for police to intervene in peoples’ lives. This is the undergirding logic of calls to defund the police, so demonized by conservatives and feeble liberals: a recognition that police interactions with marginalized communities are consistent sources of harm, deportation, incarceration, and death.
Whether Cuomo recognizes it or not — and he does not — an abolitionist, anti-carceral logic informed the struggle against the “walking while trans” ban. It is no accident that the organizers behind it are also committed to the full decriminalization of sex work, rather than sharpening the distinction between “guilty” sex workers and “innocent” trans women of color who are discriminatorily misidentified as prostitutes. The “loitering” statute provided expansive grounds for police to harass and arrest trans women of color, including using the possession of condoms as alleged evidence of prostitution. With full sex work decriminalization, law enforcement officers would no longer be able to use policing prostitution as a pretext for harassing trans women, raiding immigrants’ businesses, or discrediting sex workers who report abuse.
Bianey Garcia, a trans and immigration rights activist, was among the organizers thanked by name on Monday for their leadership by New York state Sen. Brad Hoylman, a Democrat who sponsored the Senate bill to repeal the “walking while trans” ban. In a report published last year, which found that the majority of voters support the full decriminalization of sex work, Garcia offered an account of her personal experiences, making clear the need to see this week’s victory in the context of the fight for decriminalization. “I’ve been arrested four times for prostitution,” Garcia noted in the report. “Only once was I actually doing sex work, the other three arrests were just profiling because I’m a trans woman.” The conclusion, of course, is not that only three of those arrests were unjust.
When Layleen Xtravaganza Cubilette-Polanco, an Afro-Latinx trans woman, died in solitary confinement on Rikers Island in 2019, she was being held on $500 bail owing to misdemeanor charges for a prostitution-related offense. As I wrote at the time, her death sat at the intersection of some of the criminal justice system’s worst excesses: the criminalization of sex workers and the policing of trans women of color that it entails; the cash bail system; the use of solitary confinement; and the fact that institutions like Rikers exist at all. Whether or not she was indeed intending to engage in sex work at the time of her arrest has no bearing on the deadly injustice of her incarceration.
It’s with good reason that the organizers who fought for the “walking while trans” ban repeal consistently describe their victory as a “step.”
Those organizers have been explicit about their goal to remove all of the grounds used to police their communities. “Keep your nails sharp, our next fight is to DEFUND and ABOLISH VICE!” Cecilia Gentili, a prominent advocate for sex workers’ and trans rights, wrote on Twitter, referring to the abuse-riddled New York Police Department’s vice division, which polices the sex trade. Following a ProPublica investigation which revealed that vice busts have led to “numerous allegations of false arrest and sexual misconduct, and that almost everyone arrested was nonwhite,” a group of New York lawmakers called in December for the NYPD to stop all undercover operations that aim to arrest sex workers or their clients.
In the wake of Polanco’s death in 2019, a number of progressive New York lawmakers, in solidarity with trans rights, immigrant rights, and sex worker organizers, introduced a comprehensive bill for the full decriminalization of consensual sex work. The bill has been sitting in committee for two years and now faces competition with newly introduced legislation proposed by Democratic state Sen. Liz Krueger. Krueger’s bill follows the so-called Nordic model, wherein only buyers of sex or third parties face criminalization. Such partial decriminalization efforts force sex workers into the shadows and continue to entrap their loved ones and associates in the system of carceral injustice. Examples abound of sex workers being arrested for soliciting under such laws while remaining at continual risk of exposure to immigration law enforcement.
If the repeal of the “walking while trans” ban improves community safety, it is precisely because it reduces grounds for police engagement.
If the repeal of the “walking while trans” ban improves community safety — implicit in even the cases made by mainstream as well as left-wing Democrats — it is precisely because it reduces grounds for police engagement. The Nordic model fails to follow this important pattern. It will be to the detriment of Black and other women of color, particularly trans women, if Krueger’s bill wins out over full decriminalization efforts. The point has been made time and again by sex worker organizers and writers like Melissa Gira Grant that full decriminalization would recognize that sex work is work — and not the business of the police and courts. For many, sex work may not be good work or always free of exploitation; it may be resorted to as a means of survival. But the very same is true of many jobs in which workers are nonetheless deemed worthy of rights and legal protections.
New York Assembly Member Zohran Kwame Mamdani, a Democrat, tweeted in celebration of the repeal of the “walking while trans” ban, noting, “No one’s existence should be criminalized.” The abolitionist struggle for that reality goes on.