Today, the New York State Legislature passed legislation that is championed by communities of color, the transgender community, and the Rochester Democratic Delegation. This legislation, A3355 (Paulin) and S1351 (Hoylman), known as the repeal of “Walking While Trans,” is part of the push to repeal laws that have been used to arbitrarily arrest and detain New Yorkers for simply being different.
The legislation repeals Section 240.37 of the penal law, which criminalizes “loitering for the purpose of engaging in a prostitution offense.” The archaic law targets the same marginalized groups that are at higher risk for sex trafficking and other forms of exploitation and abuse. Countless transgender women, especially women of color, have been detained, harassed and falsely accused under this discriminatory law.
Section 240.37 of the penal code was drafted in 1976 and was used to stop the proliferation of prostitution in New York City by criminalizing “loitering for the purposes of engaging in a prostitution offense.” Because the code was written in a way that made the definition very vague, discretion was given to law enforcement when it came to enforce the code.
“I think it’s a long time coming, laws like that are no different than the stop-and-frisk law that existed some years ago in New York that effected black and brown men. It’s been a way to suppress and police marginalized groups of people. Laws like that not only effect Trans women of color, but it effects many women who have used sex work as a tool to bring in income. More than not most Trans women have to utilize sex work to support themselves, as it is difficult for them to attain stable work in most communities. I’m glad to see we are moving in the direction that will improve societal conditions for Black Trans women.” – Jazzelle Bonilla, Trans-Woman, Community Health Care Worker.
Because of the vague interpretation of the code, the law has amounted to what is essentially a “stop-and-frisk” for women of color and the LGBTQ community. As is often the case, the brunt of the aggression has been placed on black and brown people.
According to a complaint filed by the Legal Aid Society against the NYPD in 2016, data shows that 85% of the individuals arrested under Section 240.37 are Black or Latinx. In 2018, there was a 120% increase in arrests related to this law according to the Division of Criminal Justice Services. Of the 152 arrests made in 2018, 49% were Black, 42% were Hispanic, and the remaining 7% were white; 80% of people identified as female, though because of mis-gendering of trans women in police reports, this figure is likely higher.
“The Black Lives Matter movement was a wake-up call for many of us in the community,” said Assemblymember Harry Bronson. “While we have taken some steps to address police accountability, we have more to do, including addressing the disproportionate police actions against women of color and non-binary New Yorkers. Passage of this legislation and repeal of this law is a step in that direction.”
“No one should face police scrutiny, arrest, or violence for who they are or how they look,” noted Senator Samra Brouk, Chair of the Senate Committee on Mental Health. But for decades, this is exactly what has been happening to trans and gender nonconforming women, in particular trans women of color, across New York State. These unnecessary and unjust encounters with police have denied trans and gender nonconforming people their freedom and safety, not to mention the ability to get a job, access housing or become citizens. I am proud to join my colleagues in the legislature to pass S.1351 so that queer and trans people of color will feel safer in their homes and communities.”
“For too long, the state criminal code has been used to oppress and harass vulnerable groups of people,” said Senator Cooney. “This long-awaited legislation will help alleviate our ongoing problem of disproportionate police action toward the trans community, especially trans people of color. While this legislation will not totally curb police violence, it moves us closer to protecting the LGBTQ community.”
"This law is redundant. It does nothing to make our communities safer and results in unjust outcomes for our neighbors,” said Assemblymember Jen Lunsford. “Lawyers on both sides of the courtroom agree that this law is not only unnecessary but causes outright harm. I am glad to see us taking affirmative steps to remove laws from the books that unfairly target LGBTQ communities and people of color."
"For far too long this antiquated and vague law has allowed for the disproportionate profiling and arrests of many from marginalized communities across New York, hurting trans women in particular,” said Assemblymember Sarah Clark. “The repeal of section 240.37 is long overdue and can help relieve our neighbors of undue police interference. No longer can merely existing and living as one's authentic self be used as the pretext for a police encounter. This measure is a critical step in providing justice to our state's most vulnerable populations."
“When we talk about incarceration reform, we often leave trans individuals, especially Black and Brown trans women, out of the conversation,” says Assemblymember Demond Meeks. “Nearly one in six transgender people, and one in two black transgender people, have been to prison. And, their incarceration is often a result of being disproportionately impacted by homelessness, unemployment, and food insecurity. This vague anti-loitering statute must be repealed. It is discriminatory, counterproductive, and subjecting members of our community to more trauma by way of incarceration.
I support this bill fully and wholeheartedly and look forward to voting yes on the assembly floor.”
In addition to being enforced arbitrarily, Section 240.37 is also unnecessary as it is duplicative of other laws on the book. Most community’s that have complaints about prostitution, public lewdness, disorderly conduct and other neighborhood crimes can be addressed by several other laws. The repeal of Section 240.37 will not impact public safety or the ability of the police to respond to community complaints; it will help restore the dignity, privacy and safety of a vulnerable community.
Key law enforcement organizations support the repeal, including the District Attorneys Association of the State of New York (DAASNY). The association said the law has “come to be used in ways that wrongfully profile people and even lead to their arrest based on nothing more than gender expression or appearance.” DAASNY stated that it’s time to end this “discriminatory and counterproductive law.”