NYPD amends patrol guide to curb 'walking while trans' arrests

Trans women and their allies demonstrate for equal rights and protections at a march in Jackson Heights in July 2018.  Eagle  file photo by Andy Katz

Trans women and their allies demonstrate for equal rights and protections at a march in Jackson Heights in July 2018. Eagle file photo by Andy Katz

By Emma Whitford

The NYPD has agreed to narrow its application of a controversial prostitution-related loitering misdemeanor that advocates say has long criminalized “walking while trans” in Queens.

Section 240.37 of the penal code gives police officers grounds to arrest a person for allegedly stopping, talking to or beckoning at others in a public place. In practice, police have used arbitrary observations as grounds for arrest, such as a defendant’s “short dress” or “tight black pants.” Trans women profiled as sex workers have been arrested while waiting for the bus, and standing near one of several gay bars on Roosevelt Avenue in Jackson Heights.

New patrol guide language explicitly prohibits arrests based solely on factors such as a person’s gender, gender representation, location, clothing or arrest history. The change is part of an April settlement between the NYPD and eight plaintiffs backed by the Legal Aid Society and the Cleary Gottlieb Steen & Hamilton LLP, who brought a constitutional challenge against the loitering charge in September 2016.

Even as they celebrate the settlement, advocates and attorneys say that it should not distract from a state bill that would repeal the loitering law altogether. Sponsored by State Sen. Brad Hoylman (D-Manhattan) and Assemblymember Amy Paulin (D-Scarsdale), the legislation is a late-session priority for Decrim NY, a new coalition advocating for the decriminalization of the consensual adult sex trade statewide.

“During the course of this litigation, what became clear was the most direct path to addressing all of these problems is simply repealing the statute,” said Kate Mogulescu, a member of the original litigation team and director of the Criminal Defense and Advocacy Clinic at Brooklyn Law School. “And you know who can do that? Albany.”

Last year marked the first spike in loitering arrests since 2012 — more than 180 percent over 10 months in 2017 — even as overall prostitution-related arrests declined. More than half of the 121 arrests took place in Queens, concentrated in Jackson Heights and Corona.

Until the charge is repealed, Decrim NY predicted in a statement, “trans and cis women and gender non-conforming people of color are still at risk of false arrest and violence.”

“The NYPD has proven that they are intent on arresting our neighbors, whether they are sex workers or not,” added Sen. Jessica Ramos (D-Queens), a Decrim NY ally, who supports the passage of Hoylman’s bill.

In light of the upcoming 50th anniversary of the Stonewall riots, Hoylman added, “it’s time we end the rampant harassment of transgender people by striking this law from the books for good.”

As part of its settlement, the NYPD will conduct compliance training in precincts where loitering arrests have taken place in the past year. Individual officers and precincts that fail to comply with the new guidelines could be subject to additional training and, at their superior’s discretion, discipline.

“The changes reflected in this settlement are changes that have been well underway in the NYPD,” said Sgt. Jessica McRorie in a statement. “The NYPD is committed to providing clarity to our officers on loitering enforcement, and did so through a combination of amplifications to the patrol guide and enhanced training to ensure compliance.”

Mogulescu credits the defendants. “The people that were wrongfully arrested and organized to bring this lawsuit gave a tremendous amount of their time and went through a lot in the course of the litigation,” she said. “And it is a testament to their bravery in coming forward that we are seeing any shift at all.”