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Can Decriminalizing Sex Work Curb Police Harassment of Transgender People?

During her two years as a sex worker in New York, Bianey Garcia, a transgender woman of color from Mexico, was arrested three times. The arrests were the most visible examples of what she regarded as systematic harassment tied to her ethnic and gender identity.

Bianey Garcia

Bianey Garcia. Photo courtesy Digital Transgender Archive.

“I am afraid of going out,” she said in an interview with The Crime Report. “I’m afraid of being arrested, because I’m not passing. [But] if you are a trans woman and you pass as a cis woman, the police don’t bother you.

“If you don’t pass, the police are constantly bothering you, harassing you, profiling you.”

The criminalization of sex work contributes to the harassment of transgender people, Garcia said.

Some figures suggest she is right. According to a 2015 National Transgender Discrimination Survey, 64.1 percent of transgender sex workers report being harassed by police.

Moreover, as a woman of color, Garcia was already susceptible to police harassment. According to data cited by the New York Times Magazine, 85 percent of the individuals arrested for sex work in New York are women of color.

A set of bills introduced in the New York State legislature earlier this summer signal that things may be changing.

The bills, introduced June 10, would have decriminalized the purchase of sex between consenting adults, and also would have allowed sex workers to apply to expunge their criminal records related to sex work. Although Gov. Andrew Cuomo did not endorse the package of bills, and the legislative session ended without the bills being voted on, advocates believe that it has paved the way for serious public debate.

Nina Luo

Nina Luo

“We wanted to introduce [the bill] as a means to start a public conversation,” said Nina Luo, a member of Decrim NY, a coalition to decriminalize and destigmatize sex work.

If the bills had passed, New York would have been the first state to decriminalize sex work.

While decriminalization of prostitution might not completely protect transgender people from all forms of bias and police harassment, Garcia believes it would still make a huge difference.

Audacia Ray, a steering committee member at Decrim NY and director of the New York City Anti-Violence Project, agrees, As a white cisgender sex worker in the 2000s, Ray was usually able to avoid police attention.

“I worked using the internet before there was a ton of attention to sex work on the internet, [and] I worked independently,” Ray told The Crime Report.

“So, I personally wasn’t targeted with criminalization. I didn’t get arrested. That experience of the sex industry is entirely because of the identities that I hold.”

Once Ray became involved in activism, however, and connected with other sex workers with different identities, she realized how much sex workers of color and trans sex workers were affected by criminalization.

“People who are more marginalized, particularly black trans women, were having a very different experience of sex work and criminalization than I had,” she said. “That was a real reckoning for me to get my head around the vastly different experiences people have of the sex trade and criminalization.

“It’s important to note that criminalization targets black and brown folks and LGBTQ people in very particular ways, and just talking about criminalization and women is not really the whole picture.”

The National Debate

The debate about whether sex work should be legal has picked up traction in many other parts of the country as well, with supporters arguing that it can open the door to regulation that ensures the safety of sex workers. And the issue has received support from some Democratic candidates in the 2020 presidential election campaign.

Elizabeth Warren, Bernie Sanders and Kamala Harris have all said that they would consider some form of decriminalization.

Harris, a former California Attorney General, said that while she believes those participating in the “ecosystem” that profits from exploitation should be punished, “we should really consider that we can’t criminalize consensual behavior as long as no one is being harmed.”

Data in this area remains unclear. According to federal statistics cited by ProCon.org, a nonpartisan public policy group, 38,000 individuals were arrested for prostitution nationwide in 2016. That represents a sharp drop in the numbers reported earlier in the decade (In 2006, arrests totaled more than 79,000.)

Other estimates, cited in The New York Times article, say that the average annual figure is as high as 55,000.

Advocates like Luo say there is increasing recognition that sex workers are entitled to the same protections as other workers.

“It’s just literally not possible as long as the activity is still considered criminal,” said Luo. “This [bill was] a first step.”

Fired From Her Job

Garcia was driven to sex work by economic necessity. She was fired from a restaurant job shortly after she started taking hormones to begin her transition, and couldn’t find a new job anywhere else.

“I went to many places and restaurants, knocking on doors to get a new job, and it was difficult to get employment because my face was changing, everything was changing,” said Garcia, who was also an undocumented immigrant at the time.

Garcia’s experience is not uncommon.

According to the National Transgender Discrimination Survey, transgender people frequently face employment discrimination, and those who lose their jobs due to bias are more than three times as likely to begin trading sex.

Other figures underline the special challenges faced by transgender sex workers of color. In Washington, D.C., according to a 2015 report by the DC Trans Coalition, 23 percent of African-American transgender sex workers reported being physically or sexually assaulted by police.

Garcia’s first arrest occurred when she was 18. She was walking with her boyfriend when undercover police officers approached her.

“They assumed that I was involved in sex work because I was walking with a boyfriend,” Garcia, who is now 29, said.

“When I went to jail for the first time, I was so scared.”

Her lawyer told her to plead guilty so that she could go home. She did not understand that she could have entered a different plea.

Garcia was arrested again after a man harassed and assaulted her along with a friend, who is also a transgender woman. They fought back to defend themselves, and the man called the police.

Garcia and her friend were unable to speak English well enough to communicate what happened, so the police only listened to the man’s side of the story, she said.

As a result, Garcia spent 18 months on Riker’s Island in a men’s jail facing assault charges. She said she was sexually harassed throughout her time there.

Like many of those affected by sex work criminalization, Garcia, who now has a green card and is applying for U.S. citizenship, is a former victim of sex trafficking.

In an Urban Institute study that followed 1,413 defendants arrested from 2015 to 2016 in relation to sex work charges in Brooklyn, Manhattan, the Bronx, and Queens, 35 percent had been trafficked into sex work at least once, and 20 percent were currently being trafficked.

Additionally, 57 percent reported prior physical assault and 47 percent reported prior sexual assault.

More than one fifth of transgender people who interacted with the police reported being victims of some form of harassment, and xix percent reported bias-motivated assault from the police, according to the National Center for Transgender Equality.

Long-term Effects of Criminalization

There is an “octopus of ways” that criminalization hurts sex workers, according to Audacia Ray.

“Criminalization is not just about arrest; it’s about harassment, terrorizing people, exploiting folks,” she said.

Audacia Ray

Audacia Ray

Ray explained that having a prostitution charge on one’s record can make it difficult to find employment or housing or can lead to harassment from employers or landlords. It can also exclude people from gaining subsidized housing or snap benefits and other benefits that would allow people to escape poverty.

“The whole system pretends to be telling sex workers that punishment means you shouldn’t do this anymore, but what punishment actually looks like is making it much more difficult to leave the sex trade and do other work if they want,” Ray said.

Criminalization hurts those who are already in dire economic straits, according to Luo.

“When you criminalize the industry, you not only push the industry underground, making it less safe for people, but you also expose people to [the] consequences of criminalization such as violent policing, incarceration, and criminal records that prevent you from accessing housing, employment, immigration services,” Luo said.

“[Criminalization] traps people in a cycle of needing to trade sex to survive instead of giving them options to exit if they want to.”

The movement to decriminalize sex work has divided many advocates for women’s rights.

After Decrim NY held a rally last spring in Albany, N.Y, the state capital, with activists, politicians and other stakeholders arguing for decriminalization, a second rally was organized by opponents, which included feminist groups such as the National Organization for Women.

The opponents argued in favor of the Nordic Model, based on legislation introduced in Sweden, Norway, Iceland and Finland which makes those who purchase sexual services liable for criminal prosecution, but not sex workers themselves.

Congresswoman Carolyn B. Maloney (D-NY), known for her advocacy of the Equal Rights Amendment, was one of many who criticized the bill.

“This idea does not help or lift up or empower or protect women in any way, shape, or form,” Maloney said, Vice News reported. “I support efforts to decriminalize prostitution, but I do not support any idea, bill, or proposal that would let pimps, johns, and the exploiters off the hook.”

Under approaches like the Nordic Model, however, people who support sex workers, even those who put on sex workers’ make up or drive them to appointments could be charged with promoting prostitution, both Ray and Luo argued.

Luo said a lot of the controversy surrounding decriminalization is due to “fear-mongering.”

“It is the same fear-mongering that has pushed mass incarceration for decades, which is saying that this is going to expand the sex industry,” said Luo.

“The reality is we have one of the most criminalized systems of sex trade in the world and we also have a thriving underground sex trade.”

The decriminalization issue also entered into the tightly fought race for Queens (NY) District Attorney this year. Tiffany Cabán, a progressive, had promised not to prosecute sex workers or their customers, and pledged that, if elected, she would issue a memo on her first day instructing assistant district attorneys not to prosecute these offenses.

Cabán was originally thought to have won the democratic primary, with a tally putting her 1,100 votes ahead of her opponent Melinda Katz, who supports criminalizing those who promote sex work, but not sex workers themselves, according to the New York Daily News.

(Following a recount earlier this month, Cabán conceded to Katz, losing by a mere 55 votes.)

Luo argued that the best way to reduce the sex trade is not to criminalize it but to provide solutions to the poverty that drives it by providing living wage jobs and affordable housing.

“People don’t decide whether to trade sex based on whether it’s criminalized; they decide to trade sex based on whether they can feed themselves or feed their kids,” Luo said.

“I would really challenge our neighbors to think critically and with compassion, and beyond the fear mongering, to listen to people actually in the sex trade, and hear what kind of resources they need to either be safe in their work or exit if they want.”

Maria Trovato is a TCR news intern.