The Walking While Trans Ban Is ‘Stop and Frisk 2.0’

The Walking While Trans Ban Is ‘Stop and Frisk 2.0’

The Walking While Trans Ban Is ‘Stop and Frisk 2.0’

New laws, coupled with older ones, form a web of constraints that marginalize trans people.


When TS Candii moved to New York in her early 20s, she thought she would finally feel safe. As a black transgender woman, it wasn’t easy to get by in her hometown of Nashville, Tennessee. “All over the South, we’ve always been under attack,” she told me. In one of her earliest memories, an elementary school teacher kicked her out of class for wearing a bow in her hair. “He said I was a disruption. I remember standing in the hallway thinking, what did I do wrong? What’s the matter with me? At the time I was a boy, with a girl’s object on my head, and to them, that wasn’t right.”

But that same hostility followed her to New York, where she moved hoping to start over. One summer afternoon in 2017, she was smoking a cigarette outside her apartment building in the Bronx when a police car pulled up. It was a vice squad, and they threatened to arrest her—she was standing on that corner, they alleged, because she was a sex worker. She denied it; she was just having a smoke. Fine, the officer said. How about you work with us, then, to help us identify drug dealers and sex workers in the neighborhood? He offered $1,500. She refused. Again, the officer told her he’d book her on prostitution—unless she performed oral sex on him. Terrified, Candii complied. “I didn’t have another option,” she said. “I ran home grateful that I wasn’t in jail.”

Candii is one of the many transgender women to have been profiled by what activists have dubbed the Walking While Trans ban. The law criminalizes “loitering for the purpose of engaging in a prostitution.” Police routinely use the legislation, which has been on the books since 1976, to target trans women of color, arguing that what they’re wearing or where they’re standing is sufficient proof that they’re selling sex. And while Candii does at times engage in sex work, she told me she wasn’t on the job during that run-in with police.

On January 28, Candii was among the activists who headed to Albany for the second year in a row, hoping to convince lawmakers to vote for a bill that would repeal the ban. According to DecrimNY, an advocacy group backing the bill, the anti-loitering law overwhelmingly affects black and Latinx trans and cis women, who made up 49 percent and 42 percent of related arrests, respectively, in 2018. The risks are particularly pronounced for the undocumented, who risk exposure to ICE enforcement. “It’s stop and frisk 2.0,” Candii said, recalling other instances where police had stopped her and searched her bag, suspecting that she was engaging in sex work. In one episode echoed by other activists in Albany, she received a citation for carrying condoms in her purse; the officers, she said, considered that enough evidence to prove she was selling sex. But she told me she had just gone to a health center and had picked some up. Another time, she was stopped while flagging down an Uber driver. Anti-loitering laws are on the books in major cities such as Chicago and San Francisco, and police can pair them with other charges, such as disorderly conduct or, in some states, criminal laws specific to HIV, to target trans women on the street.

“We see it play out in the same way each time,” Saye Joseph, policy and advocacy manager at the Black Youth Project 100, which is advocating for the bill along with DecrimNY, another group, told me. “When trans black and Latina women are hanging out late at night, if they’re dressed promiscuously, it’s enough for police to stop them. That alone should be angering communities and public officials. We all know about racial biases, but this has an additional layer—the cops are targeting women for what they wear,” she said. In 2016, the Legal Aid Society filed a lawsuit challenging the law’s constitutionality and the New York Police Department’s discriminatory enforcement; the city worked to dismiss much of the suit and ultimately settled, leaving the question of the law’s constitutionality unresolved.

Faced with a spike in arrests in 2018—a 120 percent increase from the previous year—the NYPD adjusted its patrol guide, urging officers not to arrest women arbitrarily. In early February, the New York City Bar Association, a membership organization of over 24,000 lawyers, released a report in support of the repeal bill, arguing that the law’s loose enforcement regulations “inevitably [encourage] police profiling based on perceived ethnicity, national origin, and immigration status by permitting arrests of individuals who, according to police, ‘look like prostitutes.’” And Governor Andrew Cuomo expressed his support at the Human Rights Campaign Gala on February 1—the first time he has publicly taken that position. “We must not allow any violation of any group’s human rights because to allow the intimidation of one, the disrespect of one, the violation of one, is to invite the violation of anyone,” he said. “And that is the responsibility of all of us to act, and to act with urgency.”

Cuomo’s statement bodes well for those pushing to repeal the ban. But on the bus back from Albany—after a day of meetings with lawmakers—activists weren’t quite ready to celebrate. “The overall climate around criminal justice, particularly the recent bail reform law, is making Democrats hesitate on every criminal justice bill moving through the pipeline,” Joseph said. Others, she added, conflate the bill with another one on the 2020 legislative docket that would decriminalize sex work entirely. And although they’re confident that the repeal bill will pass—the majority of Senate Democrats back it, and there’s been some progress in the Assembly— “there are no guarantees in this legislature, even if the governor expressed support,” Joseph sad.

The advocacy around the Walking While Trans Ban isn’t in isolation. It fits neatly into two larger national conversations, about both transgender rights and sex work.

As New York activists headed to Albany, a spate of anti-trans bills have been making their way through legislatures across the country. In Washington and Idaho, lawmakers introduced a bill that would ban transgender women from participating on sports teams that align with their gender identity; another in Idaho would block trans minors from receiving gender-affirming surgery—medical professionals who do perform such operations could face jail time or hefty fines. Similar legislation in South Dakota was defeated last week; its sponsor, Fred Deutsch, had called reassignment surgery a “crime against humanity” and likened it to Nazi medical experiments. Lawmakers backing those bills contend that children under 16 are too young to take medication or hormones such as puberty blockers, injections, or implants. Medical professionals, in contrast, say that such treatments overwhelmingly benefit trans teens, who often suffer from severe anxiety and body dysmorphia as they reach puberty. Other health care bills remain on the table in Florida, Georgia, Oklahoma, Illinois Kentucky, Missouri, South Carolina, and Texas.

Advocates argue that these new laws, coupled with older ones, form a web of constraints that marginalize trans people. Research has shown that the discrimination trans people face in every aspect of life, from health care to housing to employment, leads many to see sex work as the only viable option. “LGBTQ, black and brown, immigrant and disabled communities engage in sex work at higher rates because they are locked out of jobs in the formal economy,” New York Senators Jessica Ramos and Julia Salázar wrote in an op-ed for the Daily News last year. Accordingly, this fuels the stereotyped logic that leads police to conclude that trans women in the public space are necessarily selling sex.

“Trans communities around the country and the world have been organizing for a long time to challenge the ways our existence gets criminalized,” Gabriel Arkles, a senior staff attorney at the ACLU, wrote in an e-mail. “In this moment, in places like Florida and South Dakota, that looks like organizing to stop new laws,” he added. “In other places, like New York and DC,” it entails “trying to get laws off the books that have been used to criminalize trans women of color in public space for a long time. But it’s all a part of our communities banding together and fighting threats to our existence.”

It’s that concerted effort to, as Candii sees it, “police trans bodies,” that weds two seemingly distinct and increasingly national conversations, about trans rights and sex work. The attempt to “criminalize our existence,” she said, forces trans women to sell sex as a means of survival. And although she supports the decriminalization of sex work—as do an increasing number of Americans—she argued that bills like Idaho’s and the refusal to grant trans youth access to services they need “leave trans women with no option other than to survive through sex work. We’ve grown up with hate, and because of who we are, we can’t get jobs. I need to sleep, eat, and put clothes on my back, to pay to transition into who I am at heart. And our nation throws us onto the streets.”

Curiously, the legislators backing the bills in Idaho, Florida, and elsewhere frame the issue as one of “child protection,” Ryan Thoreson, a human rights fellow at Yale Law School and an LGBTQ researcher at Human Rights Watch, said. “At the same time, they don’t have anti-bullying laws that specifically enumerate gender identity; they don’t fund school counselors for trans youth; they don’t have nondiscrimination laws that protect trans adults in employment, housing, and education, which are directly related to limited job prospects for trans people further down the line.”

Against that backdrop, many of the activists I met in Albany see the push for trans rights, and the repeal of the Walking While Trans ban, as a step toward decriminalizing sex work. “The larger issue is that sex work is criminalized,” Shear Avory, 21, told me. The anti-loitering law, after all, only functions in a world where sex work is illegal. Avory said she sees the repeal bill as an “interim measure, in order to reduce harm against black and brown trans women.” But the organizers stressed the need to distinguish between the two issues; many lawmakers willing to throw their support behind the repeal bill, which they see as a misuse of police power, aren’t on board with changing how sex work is regulated. (DecrimNY is also backing a bill to decriminalize sex work in New York.)

Still, the conversations can’t be entirely divorced. “When we talk about decriminalizing sex work, we’re talking about street-based sex work,” Joseph of the Black Youth Project 100 told me. “We need to make that distinction and recognize what form of sex work is under attack,” she said. “These women are targeted because they’re perceived as sex workers based on a limited, racist narrative of what a sex worker looks like, and what a trans woman is. The racial associations, the neighborhoods, it’s all connected.”

Thank you for reading The Nation!

We hope you enjoyed the story you just read. It’s just one of many examples of incisive, deeply-reported journalism we publish—journalism that shifts the needle on important issues, uncovers malfeasance and corruption, and uplifts voices and perspectives that often go unheard in mainstream media. For nearly 160 years, The Nation has spoken truth to power and shone a light on issues that would otherwise be swept under the rug.

In a critical election year as well as a time of media austerity, independent journalism needs your continued support. The best way to do this is with a recurring donation. This month, we are asking readers like you who value truth and democracy to step up and support The Nation with a monthly contribution. We call these monthly donors Sustainers, a small but mighty group of supporters who ensure our team of writers, editors, and fact-checkers have the resources they need to report on breaking news, investigative feature stories that often take weeks or months to report, and much more.

There’s a lot to talk about in the coming months, from the presidential election and Supreme Court battles to the fight for bodily autonomy. We’ll cover all these issues and more, but this is only made possible with support from sustaining donors. Donate today—any amount you can spare each month is appreciated, even just the price of a cup of coffee.

The Nation does not bow to the interests of a corporate owner or advertisers—we answer only to readers like you who make our work possible. Set up a recurring donation today and ensure we can continue to hold the powerful accountable.

Thank you for your generosity.

Ad Policy