Walking while trans
Loitering laws are often described as “Walking While Trans” bans or “Stop and Frisk 2.0.” Repealing them represents a new, challenging frontier in the fight for justice and equality. A major victory is in sight right now in New York State. It’s time for the rest of the nation to sit up and pay attention.
Loitering laws empower police harassment of human beings on the margins. Black people, transgender women, homeless LGBTQ youth, and others lose big when police exercise power to jail them for merely existing in public spaces. The laws overwhelmingly harm transgender women of color, criminalizing their existence when they turn to survival sex work and when they don’t.
Comprehensive sex-worker decriminalization laws have made little headway around the nation, and while they are critically needed to protect marginalized people from violence, advocates in some jurisdictions are narrowing their focus and concentrating for now on repealing loitering laws.
New York State is leading the way toward equality and justice
According to Matt Tracy of Gay City News, the New York State Legislature is finally poised to repeal New York’s “Walking While Trans” law, after years of activism and advocacy on the part of New Yorkers. Last summer’s “Brooklyn Liberation” march in support of Black trans lives, which drew 10,000 protesters, raised public awareness in a major way. The State Assembly looks set to act, and Governor Cuomo has signaled his support. Legislative action is likely within two weeks.
Whether you’re ho-ing or not ho-ing, you’re going to jail
What’s wrong with loitering laws? I know a lot of people accept them as a routine part of life, especially people who either don’t live in big cities or who are wealthy enough to drive or Uber rather than walk or take public transportation.
But when I lived in New York City and hung out with LGBTQ people on the streets, I saw first hand how cops use New York’s loitering law to disperse or arrest “undesirables.” All you have to do to get caught up with the cops and go to jail is be Black, be Hispanic, be transgender, be poor, or offend rich white people with your presence.
Police arbitrarily arrest and detain people for nothing more than walking around or standing. Amanda Arnold of The Cut observes that police routinely arrest and jail women because their skirts are too short or they’ve been standing too long in one spot.
Women of color are overwhelmingly the target of NY loitering arrests, which are inherently racist. According to the New York State Division of Criminal Justice Services, 80 percent of people arrested for loitering in 2018 were women — 49 percent of them Black, 42 percent Latinx.
Trans women report that they risk arrest on the street whether they’re involved in sex work or not. As Tiffaney Grissom told The Village Voice, “Whether you are ho-ing or not ho-ing, even if you look like you might be trans, you are going to jail.”
LGBTQ youth living on the margins because of family rejection fear the police and often end up with criminal records, caught up in a web of “justice” that begins with loitering arrests. Loitering charges can be fought successfully, by people with money and leisure hours to fight, but the vast majority of people arrested lack the resources to contest charges.
A police response is the wrong response
For LGBTQ youth and women being victimized, who may participate in sex work out of desperation or manipulation, arrests and jail are no solution. This should be needless to say, but Americans are accustomed to viewing sex work through a moralizing lens rather than one that is compassionate, empathetic, or practical.
When people talk about defunding the police, this is part of what they mean. Why should armed law enforcement officers with handcuffs and arrest power respond to complaints of marginalized people selling sex?
How can putting women in jail be an answer to a social problem?
How can arresting and jailing women who aren’t even selling sex have any social merit?
Parallels to stop and frisk
People who support anti-loitering laws say they work the same way “stop and frisk” does. They say targeting low-level crime like marijuana possession or loitering (if we accept that merely existing on the street can be a crime) identifies and removes people who are highly likely to engage in more serious crime.
But is that true?
According to comprehensive analysis reported in the Washington Post, the effects of NYC’s Bloomberg-era “stop and frisk” program on rates of major crime were “very small” and more attributable to police presence in high crime neighborhoods than to actual stops or arrests. Studies have found that any impact on crime rates have been offset by a corresponding lack of trust or goodwill toward police by people most likely to need police protection.
Loitering laws destroy trust among people who need protection
This offset in goodwill is not trivial. Marginalized people, including homeless or victimized LGBTQ youth and transgender women, are much more likely to be the victims of violent crime than to commit crimes.
I’ve written about my own brief experience hustling sex in NYC as a young man, and I know very personally how fear of arrest and jail keeps vulnerable people from reaching out for help when they need it. There’s nothing like arresting people for “walking while trans” to show them you aren’t on their side.
There’s nothing like criminalizing existence to force marginalized people to stay on the margins
In the United States, loitering laws target women for existing. They target Black and Latinx women most often, and they criminalize trans women for merely walking or standing.
They empower police to make arbitrary decisions to jail people almost at will.
They weaponize police powers in situations where social services could actually help victimized people.
Loitering laws accomplish almost nothing other than further privilege white people who don’t like interacting with or seeing people not like them.
New York is marching toward new equality frontiers by ending “walking while trans” laws. It’s time for the rest of the nation to follow.
James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to firstname.lastname@example.org.