On June 12, 2019, the Center for Constitutional Rights and a coalition of organizations sent a letter to New York legislative leadership urging them to act on legislation to combat targeting and criminalization of trans people. The letter is in support of two bills, S02253/A00654 and S4981a/A6983a, one that would repeal New York's law that allows harassment and arrest of individuals for perceived participation in sex work without evidence, often termed the "walking while trans" ban, and another that would expand criminal record relief for trafficking survivors. This effort is part of the Center for Constitutional Rights' work in support of gender justice and to oppose discrimination against and criminalization of queer and trans communities.

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June 12, 2019

Re:     Urgent Request to Repeal the “Walking While Trans” Ban  (S02253/A00654) and Support the Expansion of Criminal Record Relief for Survivors of Trafficking  (S4981a/A6983a)

Dear Senate Majority Leader Andrea Stewart-Cousins and Speaker of the Assembly Carl Heastie,

We, the undersigned, are civil rights organizations that advocate for racial justice, gender justice, immigrant justice, and LGBTQ+ rights. In our capacity as civil rights leaders, we write today to urge you to pass two bills—S02253/A00654 and S4981a/A6983a—before the close of New York State’s legislative session.

First, we are deeply concerned that New York State continues to enforce NYS Penal Law § 240.37, an archaic anti-loitering law that has led law enforcement to engage in widespread profiling and harassment of the transgender and gender non-conforming (TGNC) community across the State. The statute, commonly known as the “walking while trans” ban, permits police to arrest people based on the vague and non-evidence based assumption that they are occupying public space with the purpose of engaging in sex work.

Police reports cite “wearing a skirt,” “waving at a car,” and “standing somewhere other than a bus stop or taxi stand” as reasons to arrest people.^[1] According to the Division of Criminal Justice Services (DCJS), there was a 120% increase in these arrests in 2018. Of the 152 arrests made in 2018, 49% were Black, 42% were Hispanic, and the remaining 7% were white; 80% of people identified as female, though because of mis-gendering by the NYPD of trans women, this figure is likely higher. Because of the “walking while trans” ban, countless members of the TGNC community have been arrested while heading to the grocery store or bus stop, congregating with friends, or simply trying to live their lives.^[2] 

While the New York Police Department recently changed their patrol guide as part of a settlement from a Legal Aid lawsuit,^[3] it is in no way an adequate response to the violence TGNC people face as a result of NYS Penal Law § 240.37. Patrol guides do not allow officers to assault TGNC people, yet they still do. Patrol guides do not allow officers to misgender TGNC people, yet they still do. Patrol guides do not allow officers to coerce sexual favors from TGNC people in exchange for not arresting them, yet they still do. As long as the law remains on the books, TGNC people and women of color remain at high risk of profiling, harassment, and sexual violence.

Compounding the problem of discriminatory and arbitrary arrests, TGNC people frequently experience physical, sexual, and verbal abuse at the hands of law enforcement.^[4] Sixty-one percent of transgender New Yorkers recently surveyed had previously been subject to police misconduct, including incidences of sexual assault, while a similar number reported that past experiences of police harassment had discouraged them from seeking the assistance of law enforcement altogether.^[5]

On the eve of the 50th Anniversary of the Stonewall Rebellion, it is unconscionable that New York State’s Democratically-controlled legislature would continue to sanction the unconstitutional, state-sponsored harassment of TGNC people simply for “walking while trans.” The criminalization and profiling of transgender and gender non-conforming individuals is indisputably a civil rights issue, made all the more egregious by the persistent discrimination, homelessness, poverty, and violence that transgender New Yorkers continue to face.^[6] Therefore, we urgently call for the passage of S02253/A00654, a bill which repeals NYS Penal Law § 240.37 and dramatically curtails the state-sanctioned harassment and criminalization of the transgender community.

Second, we call upon the New York State Legislature to pass S4981a/A6983a, a bill that allows survivors of human trafficking to vacate their records for crimes their traffickers forced them to commit. By making criminal records eligible for vacatur in additional circumstances, the bill allows trafficking survivors to overcome previously insurmountable barriers to securing stable housing, employment, and social services access so they can move on with their lives.

The vacatur relief afforded by S4981a/A6983a is especially critical for New York’s immigrant communities. as many immigrants in trafficking situations—whether trafficked into the sex trades, domestic work, agriculture, and construction—have criminal charges as a result of their exploitation. These criminal charges prevent immigrant survivors of trafficking from applying for citizenship, adjusting their immigration status, and qualifying for a VAWA Self Petition or Battered Spouse Waiver when otherwise eligible—in turn, making them vulnerable to deportation every day. By expanding the scope of vacatur relief available under New York State Law, S4981a/A6983a paves the way for immigrant survivors of trafficking to live free from persecution and fear.

In the Trump era, where LGBTQ+ and immigrant communities are under attack from all sides, and the federal government can no longer be relied upon to enforce equal rights, it is imperative that the New York State Legislature be a strong ally. Therefore, decisive action on S02253/A00654 and S04981a/A06983a is required this Legislative Session in order to supply a critical remedy to transgender, gender non-conforming, and immigrant communities facing criminalization, marginalization, and deportation in New York State. We urge you to pass this legislation without delay.

Sincerely,