“Walking While Woman” and the Fight to Stop Violent Policing of Gender Identity

A woman in New York City left a nightclub in late 2010 to meet some friends for tacos. While she was walking to the restaurant in the Queens neighborhood of Jackson Heights, a man pulled up beside her in a dark-colored car and began talking to her. As the woman inched closer to hear what the man was saying, two undercover police officers jumped out of a van and arrested her for engaging in prostitution. She was thrown into a van with a dozen other women and taken to the115th Precinct in Jackson Heights to be fingerprinted before being transferred to Central Booking. There, she was then jailed in the men’s unit, where she endured painful verbal harassment from some of the cops and men in custody, according to the community organizing group Make the Road New York, which identified the woman by the pseudonym “Natasha.” Her story sounds more like a rare kidnapping than a routine arrest, but Natasha’s arrest would come as no surprise to anyone who has been harassed or arrested by police for what’s known as “walking while woman.”

Consider the testimony of one young woman in New Orleans, who joined other members of the local LGBTQ youth group BreakOUT! at a 2012 city council meeting in speaking out about police profiling and violence. The woman said that in 2011, a police officer stopped her one block away from her home and told her that she looked too young to be out at night. When the officer asked for identification, she explained that she was a 21-year-old transgender woman and would consent to be escorted to her home, where she had left her ID. Instead of walking her home, the officer demanded she put her hands on the hood of the car. Here’s what she said happened next:

I was afraid of what might happen next and as I turned, the police officer immediately hit me with his car. I got up, bleeding from my leg and limping, and was struck by the vehicle a second time. I then attempted to run and take cover in the back cargo section of a U-Haul truck. The officer called for backup; I surrendered with my hands up. The much larger officer then slammed me onto the ground with his knee pressed to my face. I required immediate medical treatment at the hospital and then was transferred to Orleans Parish Prison. All of this for walking while black, transgender and young.

Stories like these are a ubiquitous reality across the country. Many LGBTQ people – especially those who look like they are bucking dominant gender norms – are frequently the targets of discrimination and violence, including at the hands of police. Transgender and gender nonconforming individuals already experience devastatingly high rates of poverty, homelessness, discrimination and violence, and advocates say that police often make matters worse.

In 2012, transgender people in the United States were three times more likely to experience physical violence at the hands of police than non-transgender people, according to the National Coalition of Anti-Violence Programs (NCAVP). Transgender people of color experienced police violence at more than twice the rate of white transgender people, and transgender woman were more likely to suffer violence at the hands of police than anyone else.

Transgender, gender nonconforming and LGBTQ people are also less likely to report violent and other crimes, due to fear of police. In 2012, 48 percent of survivors of anti-LGBTQ violence who went to the police reported police misconduct, and nearly 27 percent said police attitudes were hostile, the NCAVP reports.

Make the Road New York surveyed residents in the Jackson Heights neighborhood, where Natasha was arrested, and found that 54 percent of all LGBTQ respondents and 59 percent of transgender respondents reported being stopped by police compared to 28 percent of straight, cisgender residents. Transgender residents routinely described being profiled as sex workers and arrested by police while doing routine daily tasks.

Walking While Woman

For years, community groups across the country have been challenging police departments to stop their officers from criminalizing and profiling transgender women for being who they are in public. Vague prostitution statues in cities across the country allow police wide discretion in determining “reasonable suspicion” and “probable cause” for searching and arresting suspected sex workers, and transgender women often find themselves in handcuffs for simply “walking while trans” or “walking while woman.” A 2005 Amnesty International review of police brutality and profiling directed toward LGBTQ people in the United States found “a strong pattern of police unfairly profiling transgender women as sex workers.”

Police, advocates say, often target transgender women for arrest based on how they look. In Jackson Heights, police routinely picked up transgender women and later justified the arrests because the women were carrying condoms, according to Make the Road New York.

Andrea Ritchie, an anti-profiling advocate and attorney who represents transgender clients who have been allegedly profiled and abused by officers of the New York Police Department, told Truthout that the use of condoms as evidence of prostitution is a good example of “reasonable suspicion” becoming blatant discrimination. “When was the last time you were arrested for carrying condoms?” she asks.

The international human rights group Human Rights Watch identified a similar problem among sex workers in New Orleans, where over half of the participants in a 2013 survey who said they had experienced police harassment for carrying condoms were transgender women. While the group found little evidence that condoms were used as evidence in prosecution, dozens of participants reported carrying fewer condoms due to fear of being harassed or threatened by the police, and 30 percent of participants reported having unprotected sex due to fear of carrying condoms in a city with one of the nation’s highest rates of new HIV infections.

Local laws in New Orleans that criminalize “loitering for prostitution” are so vague that they allow police to arrest people for where they are walking or standing, what they are wearing or what they have done in the past, according to HRW. The group found that New Orleans cops used the law to target transgender individuals, who “described a community under siege from police.” The police, they told researchers, subject them to harassment, abuse and demands for sex in exchange for leniency. Louisiana’s archaic “crimes against nature” laws, which criminalize activities ranging from oral sex to sodomy, have allowed police across the state to harass and unlawfully arrest the broader LGBTQ community as well.

“We’ve heard stories of transgender youth, young women of color, being stopped [by police] and given no reason for being stopped,” says Wesley Ware, an organizer of the New Orleans LGBTQ youth organization BreakOUT! who provided Truthout with the testimony before the New Orleans City Council included in this story. “Youth report being asked for sexual favors and being excessively profiled on through actual incidences of violence.”

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For transgender and gender-nonconforming folks, discrimination and abuse does not always end with an arrest. In the past, Ritchie and other advocates in New York have documented a pattern of disturbing instances where police strip-searched and fondled transgender and gender non-conforming people in order to “check their gender,” according to a 2009 complaint and list of demands lodged with the NYPD. Transgender woman have been detained in cells with men “in dangerous circumstances and against their will no matter what the circumstances.”

Transgender men have been chained to benches and rails outside of cells for hours on end. Ritchie says she is currently representing a transgender man who was arrested during an Occupy Wall Street protest and chained to a rail in a bathroom for hours while in custody.

The NYPD did not respond to a request for comment from Truthout on the criminalization of the LGBTQ community and profiling of transgender woman. A spokesman for the NOPD indicated that Truthout would receive a statement, but that statement was not released by the time of publication.

Ritchie says that a handful of lawsuits filed against the NYPD by transgender plaintiffs, as well as the work of advocacy groups, forced the NYPD to start negotiating with advocates and the LGBTQ community in 2010. In 2012, the NYPD issued new patrol guides that addressed some concerns over discrimination, but failed to address the issue of profiling people as prostitutes. Ritchie says that transgender women are still reporting being locked up with men upon arrest, and advocates are working to make sure that officers are actually following the new guidelines.

Fighting Back

The criminalization of transgender women is currently making national headlines as one activist in Arizona challenges charges made against her under a vague local statute in Phoenix that allows police to arrest individuals on charges of “manifesting prostitution.” A person can be arrested on this charge for doing as little as repeatedly waving at cars or engaging a passerby in conversation, even if no money is exchanged for sex. Local advocates say the law allows cops to easily profile transgender women, especially transgender women of color, and haul them off to jail for doing as little as walking down the street or talking to someone they don’t know.

Monica Jones, a black transgender woman, social work student and outspoken LGTBQ activist in Phoenix, is appealing an April 11 decision by a local judge who found her guilty of “manifesting prostitution” for accepting a ride from two undercover cops while walking from her home to a neighborhood bar last year.

Laura Campagna, an activist and instructor at Prescott College who attended Jones’s court appearance, wrote in a recent Truthout op-ed that the case came down to Jones’ word against that of her arresting officer:

The officer admitted that he spotted Monica from his car and targeted her. He did not have to say it was for the way she looked: There could be no other explanation. Monica Jones was profiled for looking like a sex worker in a state where law enforcement has been granted the power to determine who people are based on their appearance. And the court reaffirmed that perception. The judge believed the officer’s story over hers not because his made more sense (it didn’t), but because she is an African-American transgender woman. Her identity has already been criminalized.

As Truthout has reported, Jones (who does not drive) believes she was targeted for arrest last year after protesting Project ROSE, a controversial anti-prostitution “rescue” program that involves broad police sweeps of suspected sex workers who are offered social services and a diversion program with Catholic charities instead of facing criminal charges. Sex worker advocates say such programs harm some sex workers by subjecting them to police profiling and arrest, and then forcing them to choose between diversion services or jail time.

The American Civil Liberties Union filed a brief challenging the constitutionality Phoenix’s “manifesting prostitution” statute, and Jones has received an outpouring of support from across the country. Jones, who has been outspoken in the media about profiling and other LGBTQ concerns, is bringing attention to an issue that advocates have been hammering at for years.

In New Orleans, the BreakOUT! has been challenging the NOPD to clean up its act since 2011, with campaigns aimed at NOPD’s “stop and frisk” policy and other policies that allow officers to criminalize young queer, trans and gender nonconforming people. In 2011, the Department of Justice (DOJ) identified discriminatory policing towards the LGBTQ community as one of its top concerns after spending a year investigating a pattern at the NOPD of racial profiling, excessive force, illegal searches and arrests. BreakOUT! worked with the DOJ to insert their voices and concerns into the investigation and the resulting federal consent decree, and in 2013, after months of prodding from activists, the NOPD adopted a policy for engaging with LGBTQ people under federal orders.

“The NOPD wrote the policy, and took some pieces from ours and from the justice department, but it doesn’t have the type of teeth that we would like to see,” says Ware, who notes that, whether NOPD officials knew it or not, they released the policy on the 44th anniversary of the Stonewall riots. Ware says the policy does not provide a way to track profiling complaints and other enforcement tools, but it does prohibit, for the first time, profiling based on gender identity, expression and sexual orientation.

Last year the New York City Council overrode a mayoral veto to pass a law that expanded a ban on discriminatory policing to include gender, gender identity or expression, and sexual orientation, among other factors. Ritchie said it was a huge step forward and one of the first enforceable bans on discriminatory policing aimed at LGBTQ people in the country.

Both Ritchie and Ware say that the NOPD and the NYPD are not going to police themselves, so despite the changes to law and policy, activists in both cities are still busy working to hold police accountable and reaching out to the community with “know your rights” campaigns.

“It’s great to get policy change, but its even better to get implementation,” says Ritchie. “Then comes the harder kind of discrimination to address, which is, what is reasonable suspicion? That’s the harder thing to get at; reasonable suspicion is more than a hunch.”

Meanwhile, advocates are pushing for change on the federal level. Today, a coalition of local and national LGBTQ and civil rights groups will unveil a set of federal policy recommendations that will serve as a “roadmap” for the Obama administration to address the criminalization of queer people and people living with HIV. There’s a good chance the DOJ is ready to take note. In March, Deputy Attorney General James Cole announced a program aimed at improving relationships between local police departments and the transgender community, and the DOJ recently began gathering data from police departments on arrests of men of color to discourage stop-and-frisk and racial profiling practices that help fill prisons with disproportionate numbers of black and Hispanic men.

Local police departments, however, are still dragging their feet despite the progress made by LGBTQ advocates. Homophobia and transphobia continue to plague departments, and that’s according to the police themselves. Recent nationwide surveys of LGBTQ police officers found that two-thirds reported hearing homophobic comments on the job, and more than half reported being treated like an outsider by their colleagues, according to the Williams Institute. At least 68 percent of transgender cops reported being verbally harassed by coworkers and a startling 43 percent reported being threatened with violence by their fellow officers.

Ritchie says that police unions have launched legal challenges against the new antidiscrimination provisions in New York, and the NOPD only complied with its federal consent decree after city officials spent months kicking and screaming in federal court. Last year, BreakOUT! had to raise a ruckus in the media to simply secure a meeting where police officials could consult actual members of the LGBTQ community about the details of the federally mandated LGBTQ policy. The police, it turns out, are much better at pushing other people around than responding to the concerns and needs of the people they are supposed to serve and protect.