New York City Bar Association Joins Call to Repeal A.654/S.2253: the “Walking While Trans” Ban

New York, February 4, 2020 –The New York City Bar Association joins the broad coalition of organizations supporting the repeal of New York’s loitering for the purposes of engaging in prostitution law (Penal Law § 240.37). The repeal of this law “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,” states a report released by the City Bar.

The statute’s vague and overbroad wording leads to unfair enforcement practices, and criminalizes constitutionally protected conduct in violation of the First Amendment. Under the law, a woman can be improperly arrested and detained simply because a law enforcement officer views her clothing or appearance as indicative of a purpose to engage in prostitution. “Section 240.37 provides no guidance explaining what classifies as actions done for the purpose of selling sex. As such, the evaluation of a possible bad act relies on the discretion of individual police officers with only the aid of a pre-printed form to describe why a person is being arrested.” The law faced opposition from its inception in 1976 and, over the ensuing four decades, has been enforced disproportionately against vulnerable and marginalized populations, particularly LGBTQ people (including runaway and homeless youth), women of color, and immigrants. As stated in the report: “The statute provides no guidance on what constitutes acceptable clothing, which has contributed to overbroad enforcement of § 240.37 against transgender women of color who congregate on the street, run errands, or simply leave their homes….Women of color have been subject to arrest for standing on the street with a group of friends or calling out to passing-by neighbors in their own communities.”

The enforcement of § 240.37 has disproportionate and dire consequences for immigrants, particularly transgender immigrants. Regardless of the outcome of a criminal case, an arrest starts a chain of events that can include ICE enforcement, and being placed into removal proceedings where much of the relief available is discretionary and a prostitution-related arrest or conviction may be looked at harshly. “The underlying systemic and institutional prejudices of immigration law, combined with the disparate enforcement of § 240.37 against vulnerable populations including transgender immigrants, mean that an arrest can have immediate life-and-death consequences,” states the report.

The report cites numerous unintended public safety consequences that result from § 240.37 enforcement, including that it “discourages the use and prevalence of condoms, which are vital to prevent the spread of HIV and other sexually transmitted infections….Notably, police officers have used the fact that a person possesses condoms as evidence that the person is guilty of loitering for the purposes of prostitution.”

Read the full report here: http://bit.ly/2v8XznV.