Legislation To Repeal the Walking While Trans Ban is Signed into Law

This week, Governor Cuomo has signed legislation proposed by Assemblymember Amy Paulin that repeals the section of New York State Penal Law establishing the crime of loitering for the purposes of prostitution, commonly known as the "Walking While Trans" ban. The law was passed by the NYS Assembly and NYS Senate where it was endorsed by Majority Leader Andrea Stewart-Cousins.

The current law was enacted in 1976 and permits the police to arrest persons based on an assumption that they are occupying a public space with the purpose of engaging in prostitution, even if the assumption is not evidence-based. The statute allows arbitrary observations such as one’s dress or appearance as grounds for arrest. Police reports cite “wearing a skirt,” “waving at a car,” and “standing somewhere other than a bus stop or taxi stand” as reasons to make an arrest under the law.

The law disproportionately affects trans women, particularly trans women of color. In a 2016 class-action lawsuit brought by the Legal Aid Society challenging the law, five of the eight named plaintiffs were transgender women of color arrested for simply standing outside, speaking to one another, or walking home from the subway or grocery store. “A woman can be improperly arrested and detained simply because an officer takes issue with her clothing or appearance,” the Legal Aid Society wrote in its lawsuit. The suit lists examples of women who have been targeted: “women assumed to be loitering for prostitution because they were wearing a ‘short dress,’ ‘a skirt and high heels,’ ‘tight black pants,’ or ‘a black dress.’”

In 2019, 57 people were arrested under the statute, of which 53% were in Queens and 23% were in Brooklyn, according to data from the New York Department of Criminal Justice Service (DCJS). Of the 152 people arrested under the statute in 2018, 80% were women, 49% were African-American and 42% were Latino, also according to DCJS data, with more than half of the arrests in New York City taking place in Queens. In 2013 and 2014, the advocacy group Red Umbrella Project found that in one Brooklyn court 94% of the defendants charged under the law were African-American.

In 2020, there were only 6 arrests made under the current statute – further underlining the archaic nature of the law and need for its repeal.

Compounding the problem of discriminatory and arbitrary arrest, transgender people frequently experience physical, sexual, and verbal abuse at the hands of police. Sixty-one percent of transgender New Yorkers recently surveyed were subjected to police misconduct, including incidences of sexual assault, while a similar number of respondents reported that their experiences of police harassment discouraged them from seeking the assistance of law enforcement altogether.

“The harassment prompted by the current law has been borne heavily by victims of human trafficking, and abused and exploited women, and does not reflect the reality that these victims deserve our help and support to escape their harmful environments, rather than submit them to further harm and degradation. The Legislature’s passage of this bill will thankfully repeal our draconian and deeply harmful current law,” said Assembly sponsor Amy Paulin (D-Westchester).

District Attorney’s Association of the State of New York

“On behalf of the District Attorney’s Association of the State of New York, I would like to thank New York State Assemblymember Amy Paulin and the Assembly Majority for pursuing legislation to repeal Penal Law Section 240.37. Loitering for the Purpose of Engaging in Prostitution is an outdated statute that could be used to wrongfully profile those based on gender expression or appearance. As prosecutors, we do not aim to penalize those who are already being victimized or sexually exploited, which is why District Attorneys across the State of New York actively support the ongoing commitment of resources to victims of sex trafficking. Many of these resources are very much needed and have been effective in connecting those involved in the sex trade with the resources that enable them to address their needs and prevent further trafficking and abuse." Monroe County District Attorney, Sandra Doorley, President District Attorneys Association of the State of New York

Brooklyn District Attorney

“I commend the Assembly for passing the bill repealing the ‘Loitering for the Purpose of Prostitution’ law, which my office no longer prosecutes. The current law’s vagueness allows the police wide discretion in whom to target for enforcement, and our experience shows that those arrested are overwhelmingly people of color, with trans women of color, already a highly vulnerable group that experiences discrimination in every area of their lives, disproportionately arrested under this law,” said Brooklyn District Attorney Eric Gonzalez. 

Nassau County District Attorney

“I am glad to see the Assembly pass a repeal of this unnecessary and abuse-prone law that has been used to further victimize some of the most vulnerable members of our communities. Those who claim this legislation legalizes prostitution have either not read the bill, not read New York’s prostitution laws, or they are making these objections in bad faith. Trans women of color have been uniquely targeted by this antiquated law, and I commend the leaders who championed this law so tirelessly,” said Nassau County District Attorney Madeline Singas.

Westchester County District Attorney

“Identifying potential law breakers by the way they look or the clothes they wear, rather than based on their actions, is the exact opposite of the way our justice system is supposed to work. That’s why I strongly support the immediate repeal of New York State’s ‘loitering for the purpose of engaging in a prostitution offense’ law. This statute is better known as the ‘walking while trans’ ban, because it has been widely used to target trans individuals, especially trans women of color. Using a law like this to single out specific individuals in our community does long-lasting harm not just to those who are targeted but also to the community at large, by feeding the perception that the entire justice system is biased and unfair.

“That is why I am proud to join the Repeal #WalkingWhileTrans Ban coalition and other advocates as well as fellow members of the District Attorneys Association of New York State to support the leadership efforts of Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie; repeal legislation sponsors Senator Brad Hoylman and Assemblymember Amy Paulin; and co-sponsors including Senators Jamaal Bailey, Alessandra Biaggi, Pete Harckham, Shelley Mayer and Elijah Reichlin-Melnick and Assemblymembers Thomas Abinanti, Chris Burdick, Sandy Galef, Steven Otis, J. Gary Pretlow and Nader Sayegh.” Westchester County DA Miriam E. Rocah

Legal Aid Society

“New York State is only a pen stroke away from finally relegating this biased law to the history books, one that has stigmatized and dehumanized Black and Brown TGNC individuals, sex-trafficking victims, and sex workers for over 40 years,” said Tina Luongo, Attorney-in-Charge of the Criminal Defense Practice at The Legal Aid Society. “The Legislature has done its part, and now Governor Cuomo must keep the promises that he has made on this issue and enact this legislation into law at once. Both the repeal and sealing provisions are critical to remedy past harms and necessary to ensure that race and gender presentation are not further criminalized.” 

National Organization for Women of New York

“I am so glad that the Assembly is finally striking this archaic and vague law from the penal code to prevent trans people, women and any other New Yorker from being profiled simply for how they are dressed, how they identify or where they stand," said Sonia Ossorio, President of the National Organization for Women of New York. "Amy Paulin has led this charge and her steadfast advocacy to end this abusive practice and right this wrong is a testament to skill as a legislator and her commitment to human rights." 

New York Anti-Trafficking Network

“The New York Anti-Trafficking Network (NYATN) unequivocally supports repealing the loitering for prostitution law, and is proud to see the Assembly passing this bill today. In its four decades on the books, the loitering law has proven problematic and harmful, particularly with respect to the vulnerable populations with which NYATN works. Repeal of this section will protect people at risk for trafficking, exploitation and abuse and would send a strong signal that their rights are valued. There is no controversy over repeal. Anti-trafficking and anti-violence groups across New York State, the country and the world agree that the very existence of this law, and its history of enforcement, further marginalizes those most vulnerable to exploitation and abuse,” Leigh Latimer, NYATN Steering Committee member

Bronx Defenders

"We applaud the Assembly's passage of A3355, which will repeal New York's 'Walking While Trans' law," said Deborah Lolai, Supervising Attorney in the LGBTQ Defense Project at The Bronx Defenders. "This bill is a critical step toward eliminating enmeshed penalties -- such as reduced access to employment, fewer housing options, and punitive immigration consequences -- for transgender people, and in particular transgender women of color, who have been profiled and criminalized for simply existing in a world that feels threatened by their presence. The Legislature has acted, and we now call on Governor Cuomo to sign the repeal immediately."

Brooklyn Defender Services

“We applaud the state legislature for at long last voting to repeal the Walking While Trans ban. Since its enactment, this statute has disproportionately been used to arrest Black and Latinx transgender and cisgender women and LGBTQ people for simply existing,” said Jillian Modzeleski, Senior Trial Attorney in the Women’s Defense Project at Brooklyn Defender Services. “The police use it as a pretext to stop and frisk people simply for standing on the sidewalk, hailing a cab, or going to and returning from work. Enforcement of the law, if not the law itself, is patently sexist, racist, and transphobic. Repealing NYPL 240.37 is a racial justice issue and a gender justice issue. This bill importantly allows people who have been criminalized under this archaic law to have their records sealed, allowing people to finally move forward without being unfairly burdened with the numerous employment and immigration consequences that violations bring. We thank the trans leaders and advocates who made this a reality, as well as legislative champions Senator Brad Hoylman and Assembly Member Amy Paulin, and we urge the Governor to urgently sign this bill to end this gender-based stop-and-frisk.”

Sanctuary for Families

“Sanctuary for Families, a leader in combating sex trafficking and all forms of commercial sexual exploitation in New York State, strongly supports the Assembly legislation to eliminate the section of the New York State Penal Code that criminalizes loitering for the purpose of prostitution. Eliminating this problematic law does not weaken in any respect our State’s strong anti-trafficking laws, which Sanctuary has successfully advocated for and works to implement. Instead it prevents the targeting for arrest of vulnerable people, typically young women of color and members of the LGBTQ community, on the basis of their appearance or to meet an arrest quota. Rather than strengthening law enforcement response to trafficking and commercial sexual exploitation this misguided law undermines it by intensifying mistrust of law enforcement by high risk communities and the victims in them who need police protection and assistance,” said Dorchen A. Leidholdt, Director, Center for Battered Women’s Legal Services, Sanctuary for Families

New York City Bar Association

"The New York City Bar Association is proud to finally see the repeal of New York Penal Law § 240.37. The law, which has faced opposition from its inception in 1976, is vague and overbroad, while police enforcement lacks clear guidance. This repeal will advance a more equitable New York by reducing the incidence of unwarranted police action against marginalized communities, in particular, women of color, both cisgender and transgender, and immigrant women.” Geoffrey L. Wertime, Co-Chair of the New York City Bar Association Lesbian, Gay, Bisexual, Transgender, and Queer Rights Committee

SOAR Institute

“This passage of the Walking While Trans ban repeal is critical for two reasons. The first is that the law criminalizes intent, rather than conduct. Second, the law is implemented in an incredibly discriminatory manner. Individuals are arrested not for what they are doing, but for who and where they are. We know that Black and Latinx women, especially transgender women and people in economically disadvantaged districts, are overwhelmingly targeted. As an attorney in NYC, I have represented dozens of translatina women in Queens who feared leaving their apartments due to being falsely arrested for loitering. This law does not protect us; rather, it discriminates against those who are the most marginalized.” SOAR Institute Co-Director Melissa Brouda, J.D., MPH.

Safe Horizon

“Safe Horizon applauds the Assembly and the legislature for passing the Walking While Trans ban repeal, which finally repeals the statute criminalizing loitering for the purposes of prostitution. This statute has been improperly used to perpetuate discriminatory intent against primarily women of color, particularly immigrant and transgender women, and hinder their access to social services. The statute's existence has not increased safety for New Yorkers, but instead targeted those most vulnerable, and must be repealed immediately. To be clear, this legislation only concerns loitering activity, and does not reach the act of prostitution itself. We thank Assembly Member Paulin and Senator Hoylman for tirelessly championing repeal of this harmful and discriminatory statute.” Safe Horizon Anti-Trafficking Program Senior Director Anita S. Teekah, Esq.

Planned Parenthood Empire State Acts

"There is no place for laws that enable harassment, profiling, and/or violence from police against anyone in our communities. I applaud the Assembly for repealing the #WalkingWhileTrans ban, a discriminatory law that has enabled police to target communities of color and subject women and transgender or nonconforming people to unjust profiling and arrest,” said Planned Parenthood Empire State Acts President/CEO Robin Chappelle Golston. “For decades, this law has operated as a thinly veiled excuse for identity-based policing. It is past time for New York to repeal the #WalkingWhileTrans ban to protect the liberties of LGBTQ+ and TGNC people.” Robin Chappelle Golston, President/CEO Planned Parenthood Empire State Acts

NYCLU

"The passage of the repeal of the Walking While Trans ban is so important to our communities. Since 1976, law enforcement has used this constitutionally dubious statute to target Black and Brown cisgender and transgender women for merely having the audacity to exist in public spaces. As a result, thousands of New Yorkers are irreparably harmed by records which impact their ability to access housing, education, and employment. The Walking While Trans ban is one of the most nefarious stop-and-frisk laws for women of color, and I am proud that New York is finally repealing it,” said NYCLU deputy policy director Erika Lorshbough.

New York State Coalition Against Domestic Violence

“This repeal of loitering for the purpose of engaging prostitution, which has disproportionately impacted transgender women of color, is a huge step forward for New York. The Walking While Trans ban is an example of how racism, oppression and discrimination are embedded in our institutions and in our systems. It also demonstrates why more people of color are arrested and incarcerated, and why more people of color are reluctant to call law enforcement for help. NYSCADV is committed to working together with survivors, allies, and partners to change the systems of oppression that enable all forms of violence to occur. Repealing this law is one step in the right direction.” Connie Neal, Executive Director, New York State Coalition Against Domestic Violence

Lambda Legal

“Lambda Legal, the oldest and largest national legal organization whose mission is to achieve full recognition of the civil rights of LGBTQ people and everyone living with HIV, applauds the passage of the bill to repeal P.L. § 240.37, the Walking While Trans ban. This bill would remove an overbroad and vague law which is used to target and criminalize marginalized women – specifically and disproportionately transgender women of color.” Richard Saenz, Senior Attorney, Criminal Justice & Police Misconduct Strategist, Lambda Legal

Make the Road

“For more than 40 years, Black and brown transgender woman like me have been harassed, profiled, and arrested for expressing our gender identity in public. I am thrilled to hear that the state legislature will make history and repeal the Walking While Trans Ban. The “loitering with the intent for prostitution” (P.L. §240.37) statute is sexist, racist and transphobic. Once, my boyfriend and I were arrested under the penal code 240.37 for simply walking together and holding hands, and until this day I still carry the scars and fears of the interaction with the police and the unjust arrest. But today I am excited that we will be able to provide protection to future generations of transgender women, reduce the interactions with police and violence against trans women of color.” Norma Ureiro, Make the Road New York

NYC Council Member Rosenthal

"The repeal of NY Penal Law Section 240.37 is a historic opportunity to push back against the systemic violence perpetrated on the TGNC/NB community. This racist law has been used to target trans women, especially trans women of color, in New York City for over four decades. It has criminalized cis and trans women, runaway and homeless LGBTQ+ youth, and immigrants, with far-reaching impacts on housing, employment, parental rights, and daily life. I thank State Senator Brad Hoylman, Assembly Member Amy Paulin, and all the activists who have steadfastly fought for Section 240.37's repeal," said New York City Council Member Helen Rosenthal (Manhattan, District 6).

Human Rights Campaign

"New Yorkers have been fighting for years to end what has become stop-and-frisk for transgender women of color, and the Walking While Trans ban enabled the profiling and arrest of transgender New Yorkers for doing nothing more than standing or walking on the street." said Human Rights Campaign President Alphonso David. "Today, we mark another step forward for equality in New York with the State Legislature's repeal of the ban. Governor Cuomo, Majority Leader Andrea Stewart-Cousins, Speaker Carl Heastie, and bill sponsors Senator Brad Hoylman and Assembly Member Amy Paulin heard our community's call for change and made this important issue an early focus of this legislative session. We thank grassroots advocates, led by the Repeal Walking While Trans coalition, for their strong advocacy on this bill and we look forward to the day when the repeal takes effect."