In 2008, Bianey García was walking with her boyfriend down Roosevelt Avenue, the main artery in the diverse Jackson Heights neighborhood of Queens, New York, around 4 a.m. after leaving a gay club. She was 18 at the time, and she had just started her gender transition.
“It was the first time that I dressed up sexy for my boyfriend,” she told NBC News. But before they reached their destination, she said a van pulled up next to them.
“Five officers get out of the van, they push me, face to the wall, they take my purse, and they empty it to the floor, and they found condoms, and they literally told me that I was doing sex work,” Garcia said, adding that she got the condoms at the club, where they were available for free.
“I tried to explain them that I wasn’t doing sex work, that the person walking next to me was my boyfriend,” she said. “He also tried to explain that we are partners, and the officer told my boyfriend, ‘You have to go or you’re going to be arrested.’”
Garcia was arrested under Section 240.37 of the New York State Penal Code, a decades-old loitering law that LGBTQ advocates have long called the “walking while trans” law.
“I didn’t know that the NYPD can stop me and arrest me just for being me, for dressing sexy, for wearing clothes that doesn’t, you know, apply to my gender,” she said.
She pleaded guilty to the charge of loitering for the purpose of prostitution, because she didn’t know her rights, she said. As an immigrant who was undocumented at the time, she was afraid of being deported like some of her close friends had been.
For the last three years, Garcia and other activists at Make the Road New York, a grassroots, immigrants rights organization, have advocated for the repeal of the so-called walking while trans law.
On Tuesday, they achieved their goal: New York Gov. Andrew Cuomo signed legislation to repeal the measure. He said in a statement that the repeal “is a critical step toward reforming our policing system and reducing the harassment and criminalization transgender people face simply for being themselves.”
Garcia said she “cried like a baby” when she heard the news.
“I cry because I really feel the pain of people when they share their experiences with a lawmaker,” she said, noting that she and other activists had traveled to the state Capitol in Albany to speak with legislators about repealing the measure. “But also, it makes me think that we have rights, we have people that are defending us, lawmakers that are part of this movement.”
In light of the repeal, the New York Police Department issued new guidance Wednesday that “officers may not arrest an individual for this charge,” according to an internal memo obtained by the New York Post.
The NYPD did not immediately respond to NBC News’ request for comment on the repeal and accusations made against the department in its past enforcement of the now-defunct statute. However, in 2018, for an article in The Cut about the “walking while trans” statute, an NYPD spokesperson said the department “does not target transgender persons for arrest.”
“Arrests are made based on community complaints pertaining to allegations of prostitution,” Detective Kellyann Ort said at the time.
‘Incredibly broad and vague’
Passed in 1976, Section 240.37 aimed to prevent loitering “for the purpose of engaging in prostitution.” However, Gabriel Arkles, senior counsel at the Transgender Legal Defense and Education Fund, said the measure was “incredibly broad and vague.”
“It allowed people to be arrested for being outside in public, talking to other people while having an intention of engaging in prostitution,” he told NBC News. “Of course, it’s not really possible to know why somebody is out on the street and talking to people.”
The law allowed police to remove people they deemed “criminal” from public spaces, according to Richard Saenz, a senior attorney at Lambda Legal, an LGBTQ legal advocacy group.
“We saw this law being used against LGBT people and specifically transgender women or people who appeared more feminine,” Saenz said. “They would be stopped by police under this law and face harassment or arrest.”
This went on for decades, he said, and the law eventually earned the “walking while trans” name.
“Basically, it became known that if you are trans, and you are out in a public space or even in your own neighborhood, you could be stopped by police for no other reason than being outside,” Saenz said.
Many trans people participate in the sex trade due to the harassment and discrimination they face in the traditional workforce, according to the National Center for Transgender Equality. In a 2015 survey, the organization found that, of 694 respondents, nearly 11 percent reported having participated in sex work. Of trans sex workers surveyed, nearly 70 percent reported adverse job outcomes in the traditional workforce, such as “being denied a job or promotion or being fired because of their gender identity or expression.” Those who lost a job due to anti-transgender bias were “almost three times as likely to engage in the sex trade,” the survey found.
Kristen Lovell, who was a sex worker in New York City’s Meatpacking District in the late 1990s and the early 2000s, said she was arrested more than 40 times under the “walking while trans” law and spent “numerous hours in Rikers Island,” New York City’s notorious jail complex.
She said police would tell her, “We’ve watched you interact with three people, so that’s why we’ve got to take you in.”
“My thing is, if you’re arresting me for prostitution, aren’t I supposed to be going with these people? Anybody could have asked me anything. They could ask me for directions, or they could have just said hello,” she said, adding that police would justify the arrest by saying that she was interacting with people in the Meatpacking District, which was known as a “prostitution zone.”
“Then they would also try to find various other ways to criminalize you, from trespassing, loitering,” she said. Once, she said police even handcuffed her to a pole in a jail holding cell for two days. She sued the city and won a settlement, but “it was just a constant battle,” she said.
Over the years, Saenz said that lawyers at Lambda Legal have heard “horrible stories” and read official police statements that say people were stopped because of what they were wearing. According to the repeal bill, one police officer involved in a Legal Aid Society lawsuit challenging the statute testified that he was trained to identify prostitutes by looking for “women with Adam’s apples, big hands and big feet.”
“We’ve heard that a number of people who were stopped under the ‘walking while trans’ statute faced police violence, including misgendering, being verbally assaulted, sexually assaulted,” he said.
Trans people face more violence from police that their cisgender counterparts, particularly if they are sex workers, according to data from the National Center for Trans Equality. Of trans survey participants who participated in sex work or other underground economies, 16 percent reported facing police violence. For Black trans people, 53 percent reported experiencing police violence, according to the organization. The walking while trans law increased that risk further, Saenz said.
Assemblymember Amy Paulin, who sponsored the repeal in the New York State Assembly, and state Sen. Brad Hoylman, who sponsored it in the State Senate, both said the law was discriminatory in its application. In their press releases about the repeal, the Democratic lawmakers cited data from the New York State Division of Criminal Justice Services, which found that in 2018, 91 percent of people arrested under the statute were Black and Latino, and 80 percent identified as women. The data didn’t include information about the number of trans people arrested under the law.
Those who were charged under the now-defunct law would have a misdemeanor offense on their record, which can affect someone’s ability to find employment and housing, Saenz said. It can also make someone ineligible to adjust their immigration status, or even result in deportation.
‘We need protection’
Though the statute wasn’t passed until 1976, Lovell said policing of people based on their gender expression goes back further than that, “with the criminalization of trans people and dress codes.”
“This is one of the things that led up to the Stonewall riots, so this is even before 1976,” she said. “This type of problem in New York City persisted for decades now, so this is bigger than just the 1976 ‘walking while trans’ bill.”
For example, in the ‘40s, ‘50s and ‘60s, police reportedly used an informal “three-article rule,” which required people to wear three pieces of female attire to avoid being arrested for cross-dressing. LGBTQ people interviewed by researchers reported being arrested in bar raids under the rule.
With the “walking while trans” law now repealed, Garcia said she fears police will use “other excuses” to arrest people in her community.
“Transgender women, we need protection,” she said. “We need to implement laws to protect transgender people from police harassment, not only in New York, but also in other states.”
Arkles said a number of other states have similar laws to the one New York just repealed, including California, Arizona and Ohio. A 2020 Miami Law Review article also notes such laws exist in Georgia, New Jersey and Chicago.
Under New York’s repeal, no currently pending prosecutions should continue, but the repeal doesn’t appear to provide a way for people with past convictions under the law, like Lovell, to have them expunged.
The repeal is significant for the LGBTQ community, but especially trans women of color, Saenz said.
“The historical significance of this is not just the repeal of this law, but it’s the organizing and the leadership of those most impacted by the laws, which are trans women of color who really did lead us to this moment,” he said, adding that activists like Garcia showed elected officials that “real people are harmed by these laws.”
Saenz said the transgender community also built on the momentum of a trans-led march for Black trans lives that 15,000 people attended in Brooklyn in June.
“They use that momentum to show that these laws and the unlawful enforcement of these laws against transgender women of color cannot stand,” he said. “That, for me, is really the historical significance of this — is showing that trans women are leaders … and we should listen to them.”