Repeal the “Walking While Trans” Ban

SUMMARY

The LGBTQ Rights Committee, Civil Rights Committee, Criminal Justice Operations Committee, Immigration & Nationality Law Committee, and Sex & Law Committee issued a report in support repealing Penal Law § 240.37, Loitering for the Purpose of Engaging in a Prostitution Offense. The report highlights deficiencies in the statute that have contributed to disparate enforcement– in particular, against women of color, and LGBTQ and immigrant communities.

Originally Issued February 2020; Reissued February 2021.

ADVOCACY

Repeal the “Walking While Trans” Ban – Overview Handout

BILL INFORMATION

A.3355 (M. of A. Paulin) / S.1351 (Sen. Hoylman) AN ACT to repeal section 240.37 of the penal law, relating to loitering for the purpose of engaging in a prostitution offense; and to amend the penal law, the criminal procedure law, the social services law and the administrative code of the city of New York, in relation to making technical corrections relating thereto (NYS 2021); A.654 / S.2253 (NYS 2020).

OUTCOME

Signed by the Governor, Chp. 23 – February 2, 2021

REPORT

REPORT ON LEGISLATION BY THE LESBIAN, GAY, BISEXUAL, TRANSGENDER AND QUEER RIGHTS COMMITTEE, CIVIL RIGHTS COMMITTEE, CRIMINAL JUSTICE OPERATIONS COMMITTEE, IMMIGRATION AND NATIONALITY LAW COMMITTEE, AND SEX AND LAW COMMITTEE

A.3355 (M. of A. Paulin)
S.1351 (Sen. Hoylman)

AN ACT to repeal section 240.37 of the penal law, relating to loitering for the purpose of engaging in a prostitution offense; and to amend the penal law, the criminal procedure law, the social services law and the administrative code of the city of New York, in relation to making technical corrections relating thereto.

THIS BILL IS APPROVED

This report is respectfully submitted by the New York City Bar Association’s (the “City Bar”) Lesbian, Gay, Bisexual, Transgender and Queer Rights Committee, Civil Rights Committee, Criminal Justice Operations Committee, Immigration and Nationality Law Committee, and Sex and Law Committee. The City Bar is an organization of over 24,000 lawyers and judges dedicated to improving the administration of justice. The City Bar submits this report in support of the proposed repeal of New York Penal Law § 240.37 to eliminate a criminal statute that has a vast disparate impact on lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people and other vulnerable minorities.

I.  SUMMARY

A broad coalition of organizations supports the repeal of New York’s loitering for the purposes of engaging in prostitution law. The repeal of New York Penal Law § 240.37 (“§ 240.37”) 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[1] and transgender, and immigrant women. This report explores a detailed basis for why § 240.37 should be repealed, touching upon the areas of discriminatory enforcement, immigration and deportation, public health, and constitutional defects in the law.

II.  BACKGROUND

Enacted in 1976, § 240.37, Loitering for the Purpose of Engaging in a Prostitution Offense, faced opposition from its inception.[2] And over the four decades of its existence, it has been enforced disproportionately against vulnerable and marginalized populations. Enforcement has targeted women–and, in particular, women of color and transgender women who are in the sex trades or profiled as such.

The text of the statute forbids a person to remain or wander in a public place—including any street, sidewalk, park, or motor vehicle—while conducting acts such as repeatedly beckoning or stopping cars or passers-by or attempting to engage passers-by in conversation, for the purpose of engaging in acts covered under Article 230.00 (Prostitution).[3] There are increased penalties if one has a previous conviction for prostitution, patronizing a person for prostitution, or loitering for the purposes of prostitution.

Under § 240.37, 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.[4] Similarly, a woman’s mere appearance in a “prostitution prone” location and proximity to cars or having a conversation can be the basis of a facially sufficient complaint.[5]

In September 2016, the Legal Aid Society and Cleary Gottlieb, its pro bono partner, filed a lawsuit in federal court challenging the constitutionality of § 240.37 and its discriminatory enforcement by the New York City Police Department (“NYPD”). The court allowed the claims of transgender women to proceed,[6] but the case settled,[7] so the constitutional questions around enforcement remain unresolved.

A broad range of civil and human rights organizations have endorsed the effort to overturn § 240.37 through the courts[8] or related mechanisms, including Decrim NY, a coalition of over 40 organizations[9] that supports the repeal of § 240.37.[10] Furthermore, the City Bar has historically supported a critical reevaluation of laws criminalizing prostitution in the interests of promoting public health and human rights, including support for the prohibition of the introduction of condoms as evidence of prostitution-related offenses in criminal proceedings[11] and laws vacating criminal convictions for survivors of sex trafficking-related activities.[12]

III.  DISCRIMINATORY ENFORCEMENT OF THE LAW

a. History of New York Penal Law § 240.37

The legislature enacted § 240.37 to target individuals “aggressively engaging in promoting, patronizing or soliciting for the purposes of prostitution”[13] in Times Square and Midtown West and East.[14] Lawmakers specifically intended to address the concerns of “unwilling victims” of solicitation and business owners in those neighborhoods who had complained that “in recent years the incidence of such conduct in public places has increased significantly.”[15] The law was part of a larger plan to curb sex work using other legal mechanisms, including zoning regulations aimed at massage parlors and “commercial sex establishments.”[16] It was enacted just before the Democratic National Convention began in New York City in July 1976.[17]

Defending a woman who was arrested the day after the law went into effect, the Legal Aid Society successfully argued that the statute was vague, overbroad, and inhibited free speech, only to have the Court of Appeals ultimately uphold the constitutionality of the law.[18] In 1977, police made 9,565 prostitution loitering arrests.[19] In the intervening decades, the “extensive redevelopment of Times Square, the movement of sex work to indoor [and internet] venues, and the policing efforts of the Giuliani administration eventually led to a decline in the public visibility of prostitution.”[20] However, the law has remained on the books, and its continued enforcement disproportionately impacts vulnerable populations.

b. LGBTQ People

The relationship between the LGBTQ community and the NYPD has been complicated and, as described more fully below, LGBTQ people are disproportionately impacted by enforcement of § 240.37. Indeed, as one legal scholar has noted, section 240.37 “was redeployed in the 1990s to target … LGBTQ[] youth of color and to discourage their presence in the gentrifying West Village.”[21] Over several years, members of the LGBTQ community have reported multiple instances of profiling, intimidation, humiliation, harassment, and even verbal and sexual abuse by police.[22] And a 2017 report by the New York City Department of Investigation (“DOI”) found that not all NYPD officers have received adequate training on NYPD’s LGBTQ policies.[23] DOI also found persistent flaws in its ability to track LGBTQ-related complaints that allege police misconduct.[24] Both failures have significantly contributed to the NYPD’s inability to recognize and remedy these deficiencies.

c. Women of Color

As detailed below, arrestees for prostitution-related offenses are overwhelmingly women of color. Arrest rates spike even higher for transgender women. While there are instances where women have prevailed over unwarranted and unlawful arrests for under § 240.37,[25] their experiences underscore a larger, systematic problem.

i. Transgender Women of Color

Transgender women of color are disproportionately likely to be profiled, arrested, re-arrested, and prosecuted under § 240.37.[26]

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.[27] Section 240.37 has a long history of being enforced specifically against transgender people.[28] Enforcement of this law and other disparate policing of LGBTQ people continue to this day,[29] despite recent reforms.[30] Transgender New Yorkers continue to report being profiled for enforcement of prostitution-related laws because the police are more likely to mistakenly believe transgender people are sex workers.[31]

Complaints against the NYPD for profiling and anti-LGBTQ bias remain a serious issue.[32] Transgender and gender non-conforming New Yorkers have reported high levels of mistreatment and harassment by the police, with 61% experiencing some form of misconduct.[33] Incidents included verbal harassment, being repeatedly referred to as the wrong gender, physical assault, or sexually assault, including officers forcing them to engage in sexual activity to avoid arrest.[34]And because of this history of mistreatment, many transgender and gender non-conforming people do not trust the police and do not report criminal activity.[35]

ii. Cisgender Women of Color

Cisgender women of color are also disproportionately impacted by § 240.37. Enforcement efforts seem to be focused on select areas of New York City that are home to communities of color, frequently labeled as “prostitution prone” neighborhoods.[36] This label creates a positive feedback loop for the increased criminalization of cis women of color in these areas, as the identification as “prostitution prone” leads to increased policing and arrests that then seems to validate the designation. The result of this kind of targeted enforcement is that 85% of the women arrested under § 240.37 were Black or Latinx,[37] a figure which is disproportionate to their representation in the population.[38]

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. This form varies between precincts, but common categories of justification include: being in an area for a certain amount of time and talking to people; wearing “provocative or revealing” clothing; gesturing to those passing by; having been previously arrested under the statute; and being around people who have previously been arrested under the statute.[39]

Variations in the forms used for § 240.37 enforcement and the lack of clear guidance have led to the criminalization of women of color for simply going about their lives in these neighborhoods. 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. Women have been arrested under § 240.37 for wearing jeans and a tank top, or a dress with the bra strap showing, or a hoodie with tight pants.[40] And they have been subject to profiling and arrest for speaking to, or being friends with, people who have previously been targeted and impacted by the statute. Women who fall victim to these arbitrary standards are at an increased risk of being re-arrested for doing nothing besides continuing to live in their neighborhoods.[41] Notably, none of the individual actions described on the forms used for§ 240.37 enforcement describe per se criminal conduct, nor has enforcement been confined to such conduct.

d. LGBTQ Runaway and Homeless Youth

Section 240.37 enforcement disproportionately impacts LGBTQ young people, who are vastly overrepresented among the populations of runaway and homeless youth (“RHY”), both in New York City and across the state. LGBTQ youth who are driven from their homes because of difficult or abusive relationships caused or exacerbated by their LGBTQ status are often forced to participate in street economies, including survival sex.

Nationally, LGB youth make up approximately 3.5-8% of the general population, but 29% of the population of RHY.[42] Transgender youth, meanwhile, are an estimated 0.3% of the general population and 4% of the homeless population.[43] In New York City, the number of homeless LGBTQ youth may be even higher.[44] Among them, people of color are further overrepresented.[45] LGBTQ youth are more likely to have been rejected by their families and so are less able to rely on familial support.[46] Consequently, they are more frequently forced to fend for themselves in finding shelter, food, clothing, and hygiene items.[47] They are thus more likely to be forced into underground economies. Stated succinctly by organizations that serve queer youth, “[t]he cumulative oppression of homelessness coupled with an LGBTQ identity places homeless LGBTQ youth in a precarious state of existence.”[48]

Because of the intersection of their identities, queer RHY, particularly RHY of color and those who are transgender and gender non-conforming (“TGNC”), are at vastly increased risk of being stopped by police and arrested.[49] At the same time, they are also more likely to be the victims of crimes.[50] Numbers vary, but experts estimate that somewhere between 2,250 and 4,000 youths under age 21 are engaged in the sex trade in New York City, with homelessness as “one of the most common drivers of youth engagement in survival sex.”[51] LGB RHY are seven times more likely than their heterosexual peers to trade sex for a place to spend the night, and transgender youth are eight times more likely to have done so.[52] As many as nine in ten LGBTQ RHY were homeless when they begin trading sex for money and shelter.[53] Many of them prefer this to risking the abuse and violence that are commonplace against them in shelters and in foster care.[54] These youth are already highly incentivized by the law,[55] and even forced by customers and by circumstance, not to use condoms.[56]

In a survey of LGBTQ RHY engaged in sex work, over two thirds of participants reported being stopped and frisked, and almost a fifth reported daily or weekly encounters with police.[57] Over 70 percent reported having been arrested, while “only” 9 percent said they had been charged with prostitution-related crimes.[58] LGBTQ youth generally are more likely to be charged with sex offenses that authorities overlook among other young people.[59] Juvenile and criminal records become a major barrier to employment, and alongside racism, homophobia, and transphobia, they help prevent LGBTQ RHY from obtaining traditional employment, thereby pushing them deeper into survival sex as their sole means of support.[60]

Section 240.37 is a significant factor in encounters between queer youth and the criminal justice system. The NYPD has responded to public pressure to police the Christopher Street pier, a common gathering place for LGBTQ RHY, by arresting them for low-level crimes that include loitering.[61] Notably, “[w]hile prostitution loitering accounts for a small portion of the arrests made in the Village… most individuals arrested on prostitution-related charges are LGBTQ young people and adults.”[62]

Negative stereotypes that are often at the root of problems faced by LGBTQ RHY persist in the enforcement of § 240.37. This is because “[t]he enforcement of prostitution loitering ordinances requires police to distinguish between prostitutes and individuals who are just out to have a good time. When police officers make this distinction they often draw on emotionally-charged stereotypes that link race, youth, gender expression and sexual orientation with crime.”[63]

For LGBTQ RHY, New York is plainly a very tough place to live. Section 240.37 contributes to the problems of stereotyping and profiling experienced by these youth by providing too little guidance and too much discretion in enforcement which, in turn, leads to unwarranted arrests. At the same time, it further stigmatizes (and saddles with criminal convictions) youth whose sexual orientation, gender identity and/or gender expression have forced them into a life on the street and survival sex to obtain food and shelter. It is thus a scourge to all LGBTQ youth, regardless of their actual involvement in sex work.

e.  Immigrant Women

Section 240.37 enforcement also has a disproportionate impact on immigrant women, and, as discussed more fully below, leaves them vulnerable to potentially grave immigration consequences as a result.[64] This is because, as previously discussed, § 240.37 provides little to no guidance—and confers broad discretion—in enforcement, and inevitably encourages police profiling based on perceived ethnicity, national origin, and immigration status by permitting arrests of individuals who, according to police, “look like prostitutes.”[65]

IV.  IMMIGRATION CONSEQUENCES

The enforcement of § 240.37 has disproportionate and dire consequences for all immigrants, particularly trans immigrants. Section 212 of the Immigration and Nationality Act (“INA”) bars individuals from adjusting status to become a permanent resident or obtaining visas if they have been convicted of multiple crimes, engaged in prostitution, or engaged in a crime involving moral turpitude (“CIMT”).[66] Additionally, INA § 237 establishes that CIMT are grounds for deportability. A large part of the trans community that has been subject to enforcement of § 240.37 are immigrants escaping horrendous conditions in their countries of origin.[67] Humanitarian forms of immigration relief such as asylum, U Visas for victims of crime, T Visas for victims of trafficking, and pro se petitions made pursuant to the Violence Against Women Act (“VAWA”), 8 U.S.C. § 1154, by survivors of domestic violence can be complicated or made unavailable to undocumented trans immigrants because of arrests for prostitution charges. While Loitering for the Purposes of Prostitution has not typically been used as a CIMT, it remains a real risk for those charged with it as it has been found to be a CIMT in the past.[68] This magnifies the problems faced by trans immigrants because they lose any means of obtaining legal status, employment authorization, or the social security numbers needed to access most public and health benefits, and thus the ability to eventually leave underground economies.

Convictions under § 240.37 place immigrants at immense risk of deportation should they ever get detained by Immigration and Customs Enforcement (“ICE”). People are at risk even though the NYPD and New York City’s district attorneys’ offices generally do not report custody of immigrants with criminal convictions under § 240.37 to ICE officials.[69] Just by being arrested, undocumented immigrants are at increased risk of ICE enforcement. As soon as an individual is fingerprinted upon arrest, they are put into the FBI database. ICE then knows that they have been arrested, what they have been arrested for, and will target them for enforcement if they are otherwise deportable (e.g., undocumented) or wait until they are convicted if it makes them removable. Notably, this is true even if the criminal case is dismissed, reduced, or the person is regarded as a youthful offender. Regardless of the outcome of the criminal case, the arrest starts a chain of events that can include ICE enforcement, ICE detention, the prospect of losing at a bond hearing because of the arrest, open case, or conviction for a prostitution offense, 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.

Law enforcement officials in the rest of New York State may report these immigrants to ICE directly and hold them until they are transferred into immigration detention. Although there are defenses available in removal proceedings such as withholding of removal and the convention against torture, these forms of immigration relief do not lead to a permanent status and are not guaranteed, and transgender immigrants often face an immense risk of assault, torture, or death in their countries of origin. 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.[70]

Transgender immigrants face unique challenges within New York City. Undocumented immigrants already have immense challenges, such as not being able to find work because they are not authorized to obtain legal employment. Thus, many immigrants resort to underground economy jobs, or unauthorized employment with employers. This leaves them uniquely vulnerable to exploitation through labor abuses such as wage theft, discrimination, and unsafe working conditions.[71] Transgender immigrants face the additional burden of gender identity-based employment discrimination, especially in unauthorized employment positions.[72] An additional hurdle for many transgender immigrants is the cost of their transition and access to healthcare. The need for money not only to survive, but also to finance their transition, drives many transgender immigrants toward engaging in survival sex.

a. Consequences on Humanitarian Forms of Immigration Relief

Applications for U Visas, T Visas, and VAWA self-petitions are subject to INA § 212(a) restrictions and applicants must apply for waivers of inadmissibility if they trigger its applicable provisions.[73] The applications for these forms of relief explicitly ask if the applicant has been arrested, charged, or convicted of a criminal offense.[74] Additionally, some of these applications ask if the applicant has engaged in prostitution.[75] Thus, it is mostly unavoidable for applicants to seek these forms of immigration relief without disclosing arrests or convictions under § 240.37. Unfortunately, waivers of inadmissibility are not guaranteed, and are determined by the individual immigration officer reviewing the application, which makes the process inherently subjective. Considering the high degree of risk created as a result of a denial, which places the applicant into removal proceedings, and the potential life-and-death consequences of being deported for trans people, trans immigrants may deem it safer to avoid applying for immigration relief.

Asylum is another form of relief that is available to transgender immigrants. Given the pervasive persecution of transgender people worldwide, many transgender immigrants qualify for asylum as a persecuted particular social group within their country of origin. However, asylum has a one-year filing deadline for applications, absent changed or extraordinary circumstances. Transgender immigrants often have been present in the United States for years or decades before they seek asylum or find themselves in removal proceedings; this may make them ineligible for asylum. Without access to counsel, many transgender immigrants are unaware that they are eligible to apply based on their gender identity.[76] Although asylum has no statutory bar for engaging in sex work or for prior prostitution-related criminal convictions, the individual asylum officer or immigration judge may deny an application for asylum based on criminal convictions as a matter of discretion. Thus, convictions under § 240.37 or for other prostitution offenses may hinder otherwise successful applications for asylum.

b. Consequences on Immigration Relief and Deportability Grounds

Immigrants who have obtained immigration relief, have an avenue to permanent status, or who already have permanent resident status are not safe from the repercussions of an arrest under § 240.37. Applications for adjustment of status and naturalization are also subject to certain criminal bars, as well as wide discretion and good moral character requirements.[77] Moreover, the moral turpitude provisions of the INA make inadmissible and deportable any noncitizen who has multiple convictions for a CIMT.[78] This can bar trans people who have an avenue to a green card from adjusting status and place trans people who have legal status at risk for deportation, because as described above, due to inevitable stereotyping and profiling in § 240.37 enforcement, many trans women are repeatedly targeted for arrests under the statute.[79]

Prostitution has long been held to be a CIMT.[80] In the immigration context, courts have held that the label of CIMT “encompasses crimes that ‘are base, vile, or depraved—if they offend society’s most fundamental values, or shock society’s conscience.’”[81] While immigration advocates argue that § 240.37 is not a CIMT, because it does not require proof of any overt act of prostitution, the case law around CIMTs is long, complicated, and overbroad. Moreover, other crimes of intent have been considered to be CIMTs.[82]  A single conviction of a CIMT can make an individual inadmissible, i.e., bar them from adjusting status, and also make them mandatorily detained if they are apprehended by ICE, unless the offense carries a potential sentence of a year or less, and the “sentence imposed” was less than six months.[83] Section 240.37 is a misdemeanor with a jail time of less than one year.[84] Thus, a sole conviction of § 240.37 could bar a trans immigrant from getting a green card and achieving stability in their immigration status, if they are sentenced to six months or more.[85] Furthermore, while a single conviction for a CIMT with a jail time of less than one year does not make an individual deportable, two convictions would trigger the deportability ground of the INA.[86]

Whether an individual’s § 240.37 loitering conviction triggers the “prostitution” inadmissibility bar or if such conviction is considered a negative discretionary factor has not been definitively resolved at the federal court level, but these determinations are discretionary and federal courts are precluded from reviewing such decisions by the Board of Immigration Appeals.[87]

Moreover, engaging in a pattern and practice of prostitution is a ground of inadmissibility, i.e., a bar to adjust status.[88] Section 240.37 incorporates § 230.00 of the penal law to define the act of prostitution, which means that an arrest or conviction under 240.37 may be used as evidence to trigger the prostitution inadmissibility ground and no conviction is required for a such a finding.[89]

Because of the lack of guidance in the statute coupled with broad law enforcement discretion, it is not uncommon for trans women who are not engaged in sex work to be targeted and arrested multiple times under § 240.37, and, as explained above, convictions could trigger the CIMT deportability grounds under INA § 237(a) and the CIMT or prostitution inadmissibility grounds under INA § 245.[90] Oftentimes, trans women charged under § 240.37 will plead guilty in order to avoid being sent to Riker’s Island and housed with men, where they face a significant threat of sexual assault, harassment, and abuse by both fellow inmates and guards.[91] The pressure to plead guilty to avoid jail time in such a situation is high even when the person was arrested for conduct that was not unlawful. Additionally, given the murky and complicated case law regarding CIMT, defense attorneys often may not give comprehensive legal advice regarding the immigration consequences of a conviction under § 240.37.

c. Consequences of Being Placed in Immigration Proceedings

Immigration proceedings are considered a civil proceeding, and while immigrants have a statutory right to an attorney, the government has no responsibility to provide one to the indigent; as a result, many people facing deportation appear pro se. Trans immigrants in removal proceedings may not sufficiently understand the proceedings and the immigration remedies available to them. Additionally, there is often a language barrier that prevents equal access to justice in removal proceedings. Thus, trans immigrants may be issued an order of removal without ever being able to seek legal counsel due to their indigent status. The consequences of this are dire, particularly to those who come from countries of origin that engage in persecution of LGBTQ people and who may face physical injury, imprisonment, torture, or certain death should they be deported.

Trans immigrants also face the prospect of being placed in detention while they are waiting for their immigration cases to be heard before a judge. ICE operates only one detention facility in the country where transgender immigrants are held in accordance with ICE’s internal guidelines regarding placement and care of transgender detainees.[92] However, transgender immigrants are held throughout the country in facilities that lack appropriate standards or training, including county jails. The transgender-specific facility is the Cibola County Detention Center in New Mexico, operated by CoreCivic, a for-profit prison company with a history of allegations of abusing detainees.[93] The Cibola detention facility is located over 500 miles from the nearest immigration court in Denver, Colorado, and detainees must appear by teleconference at their hearings. The remote nature of the Cibola detention facility isolates detainees from friends and family and makes accessing effective legal counsel extremely difficult.

The conditions within ICE detention facilities are horrendous, particularly for LGBTQ detainees. A recent analysis of government data by the Center for American Progress revealed that “LGBT detainees are 97 times more likely to be sexually assaulted than other detainees.”[94] ICE has systematically ignored its internal guidance and continues to place transgender immigrants in detention with men or in solitary confinement rather than permitting supervised release.[95] Criminal arrests and convictions, such as those under § 240.37, are factors ICE considers when deciding whether to hold immigrants in detention rather than place them in supervised release, and that immigration judges consider at bond hearings. A conviction for CIMT could lead to mandatory detention upon arrest by ICE and ineligibility for a bond hearing. Sometimes such detention, particularly for transgender immigrants, means placement in solitary confinement: isolation for 23 hours a day with little to no sunlight. The United Nations’ Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment considers many forms of solitary confinement, including prolonged solitary confinement, to be a form of torture.[96] Medical experts have also found that extended solitary confinement is equivalent to torture.[97] Given the immediate reality of being held in solitary confinement for months or even years, transgender immigrants may opt to waive their right to an immigration hearing so that they can escape the torture of solitary confinement or the near certainty of sexual assault in men’s detention facilities.

V.  PUBLIC SAFETY CONSEQUENCES

a. Section 240.37 Enforcement Practices Disproportionately Target and Impact Marginalized Communities

Members of the LGBTQ community have reported verbal abuse, intimidation, humiliation, harassment, sexual assault, and profiling by members of the NYPD enforcing § 240.37.[98] As noted above, arrestees for prostitution-related offenses are overwhelmingly women of color,[99] and transgender women—more often than their cisgender counterparts—are profiled for prostitution-related offenses.[100] The NYPD also reportedly profiles based on arrest history, so one arrest for loitering for the purpose of engaging in a prostitution offense can lead to more.[101] In 2008, two transgender women of color successfully challenged being arrested in New York City for loitering for the purposes of prostitution, which helped spur revisions to the NYPD’s Patrol Guide.[102]

In June 2012, the NYPD announced new guidelines for police treatment of transgender and gender non-conforming people.[103] However, a 2017 report by the Office of the Inspector General for the NYPD found “clear gaps in NYPD’s implementation of and training on the revisions as well as inadequacies in how the Department tracks LGBTQ-related complaints alleging police misconduct.”[104]

b. Health Consequences: People Fear Carrying Condoms Because They Can Be Used to Prosecute Them

Section 240.37 also has negative public health consequences that go beyond harming marginalized communities or furthering the distrust between the police and communities that are in more frequent contact with law enforcement. The enforcement of § 240.37 also discourages the use and prevalence of condoms, which are vital to prevent the spread of HIV and other sexually transmitted infections. According to Human Rights Watch, “[t]he expansive grounds for suspicion under New York’s loitering for the purposes of prostitution statute permit police to stop and search individuals for a wide variety of reasons and it is during these searches that condoms may be discovered and seized.”[105] The report further states that “many people, particularly members of the transgender community . . . were stopped and searched for condoms while walking home from school, going to the grocery store, and waiting for the bus.”[106] 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.[107]

The use of condoms as evidence in § 240.37 enforcement discourages condom use because people may be afraid that if they carry condoms they will be arrested and found guilty for loitering for the purposes of prostitution. This presents a serious public health problem because the marginalized communities disproportionately subject to arrest under § 240.37 are the same communities at high risk of seroconversion. Transgender women, LGBTQ youth, and women of color are all at higher risk of contracting HIV. According to the Centers for Disease Control and Prevention (CDC), 43% of people diagnosed with HIV are African-American, although African-Americans only constitute 13% of the U.S. population.[108] Further, young people between the ages of 13 and 24 make up 21% of all new HIV diagnoses, with most of those diagnoses resulting from male-to-male contact.[109] The CDC also estimates that 14% of transgender women are living with HIV, including 44% of black transgender women.”[110]

Encouraging New Yorkers to use condoms to lower the rate of seroconversion has been a cornerstone of public health policy for decades. The New York City Health Department (“DOHMH”) actively encourages condom usage by distributing free condoms at thousands of sites in New York City, including “bars, clubs, restaurants, nail salons, barber shops, as well as hospitals, clinics and community based organizations.”[111] In 2015, New York City gave out over 37.2 million male condoms and 1.2 million female condoms in an effort to combat the spread of HIV.[112] But widespread fear of being arrested under § 240.37 undermines these public health efforts by actively discouraging people from carrying condoms.[113]

c. Human Trafficking: Section 240.37 Does Not Reduce Trafficking, But Rather Harms People Who Are Trafficked

Arrests under § 240.37 do not benefit survivors of human sex trafficking. S.M., a former client of the New York City Bar Association’s Immigrant Women & Children’s Project, illustrates this.[114] S.M. was an immigrant who was coerced to engage in sex work over a period of several years, during which time her trafficker physically and psychologically brutalized her. With no family or other support, she was only able to escape her trafficker when he fled the United States due to warrants issued for his arrest. By that time, however, S.M. had been arrested eleven times for prostitution and related offenses and had been convicted on eight charges of prostitution or loitering. Hoping the police would help her, S.M. would not attempt to run away when they conducted raids of the areas in which she worked, but she was never identified or treated as a victim of sex trafficking, which is quite common.[115] Once she was safe, she was interested in applying for a job as a security guard but was concerned that she would be ineligible for employment due to her arrest history. While S.M.’s convictions may now be vacated under N.Y. Criminal Procedure Law § 440.10(1)(i)—allowing for the vacatur of convictions for prostitution (N.Y. Pen. Law § 230.00) and loitering for the purpose of engaging in a prostitution offense (N.Y. Pen. Law § 240.37) where the defendant committed the offending acts because they were a victim of sex trafficking or trafficking in persons— having to secure the services of a lawyer and file motions to vacate those convictions is burdensome and, in the meantime, the convictions hamper her ability to obtain gainful employment. [116]

Furthermore, undocumented women are disproportionately forced into sex trafficking.[117] “Traffickers may deprive victims of their passports or identification documents or threaten victims with arrest or deportation if the victims do not continue to labor for the traffickers” including in street locations visible to police.[118] This exposes women who are being forced into sexual slavery to police targeting and arrest instead of providing them with medical, counseling, housing, and other assistance.

d. Collateral Consequences of § 240.37 Convictions

Section 240.37 has been utilized at the discretion of law enforcement to profile, harass, and criminalize women of color, especially trans women of color, creating not only a pipeline to unjust incarceration, but also potential immigration hurdles, barriers to seeking employment and housing, and child welfare consequences.[119] Importantly, this is one of only two violations in the entire New York Penal Code that is not eligible for sealing.[120] As a result, thousands of New Yorkers are burdened  with these criminal charges on their records, often for innocuous behavior while existing in public spaces. This is why the passage of the proposed repeal is so crucial—because those burdened with such charges seek to seal convictions and violations of § 240.37.

VI.  CONSTITUTIONAL CONCERNS

a. Section 240.37 Violates the First Amendment

Section 240.37 violates the First Amendment in that it is overbroad and criminalizes constitutionally protected conduct. A Nevada court struck down a similar ordinance for criminalizing constitutionally protected conduct such as attempting to engage passersby in conversation.[121] While the Nevada ordinance lacked the specific intent provision contained in § 240.37, the way § 240.37 is enforced demonstrates that the law is overbroad as applied. The New York Court of Appeals’ 1978 opinion rejecting a First Amendment challenge rested on the notion that conduct for the purpose of prostitution is not a constitutionally protected form of speech.[122] That opinion is outdated and does not take into account how the statute is enforced. As the Second Circuit notes, “As with facial vagueness challenges, we must consider not only conduct clearly prohibited by the regulation but also conduct that arguably falls within its ambiguous sweep. The purpose of an overbreadth challenge is to prevent the chilling of constitutionally protected conduct, as prudent citizens will avoid behavior that may fall within the scope of a prohibition, even if they are not entirely sure whether it does.” Farrell v. Burke, 449 F.3d 470, 499 (2d Cir. 2006). As detailed above, women report being targeted by the police based on their attire, geographical location, or arrest history, to the point that they are afraid to leave their houses. The statute is having a clear chilling effect on lawful conduct, and this must be remedied through repeal.

VII.  CONCLUSION

For the above reasons, we urge the state legislature to support the repeal of § 240.37.

Lesbian, Gay, Bisexual, Transgender and Queer Rights Committee
Danielle King and Geoffrey L. Wertime, Co-Chairs

Immigration and Nationality Law Committee
Danny Alicea, Chair

Civil Rights Committee
Zoey Chenitz and Kevin Jason, Co-Chairs

Criminal Justice Operations Committee
Tess M. Cohen, Chair

Sex and Law Committee
Farah Diaz-Tello and Olympias Iliana Konidaris, Co-Chairs

Reissued February 2021*