Policing sex, often inextricably intertwined with the racialized policing of gender, is one of the cornerstones of policing of women of color.1 As stated in Queer (In)Justice, “The role of policing in upholding systems of gendered power relations, conventional notions of morality, and sexual conformity cannot be overlooked. Gender and sex policing are not only important weapons of policing race and class, but also critical independent functions of law enforcement.”2 For women of color, policing of sex and sexuality takes place primarily through enforcement of laws against prostitution but also through police violence toward, and responses to, lesbian, bisexual, queer, and trans women.
Policing of prostitution3 is a principal site of criminalization of women of color, fueled by controlling narratives deeply rooted in colonial logics and relations of power that frame Black, Indigenous, and Asian women as inherently and pathologically sexually deviant, prone to promiscuity, and ultimately interchangeable with the social category of “prostitute”—a term generally intended and experienced as a slur, reducing the person described to a profoundly stigmatized act and set of assumptions about people who engage in sexual exchange. As introduced in chapter 1, as a result of colonial land theft and genocide, Indigenous women were often forced, expected, chose or had no choice but to trade sex for their own survival and that of their families and communities. This reality, on which images of sexually degenerate Native peoples propagated by colonizers were superimposed, produced persistent perceptions of Indigenous women as inherently inclined to prostitution and therefore undeserving of protection from sexual and other forms of violence. Similarly, controlling narratives of the licentious “Jezebel” projected onto enslaved African women as cover and justification for systemic rape during chattel slavery engraved the intractable label of “prostitute” onto Black women’s bodies.4 Perceptions of Asian women as “prostitutes,” and “vector[s] of disease” drove the introduction of the 1875 Page Act to exclude Chinese women from the United States.5 Although not as enshrined in law, immigration enforcement and policing practices also cast similar aspersions on the morality of South Asian women.6 Latinxs, historically stereotyped as “passionate” and “hot blooded,” are also framed as prone to prostitution: for instance, in mid-nineteenth-century San Francisco, Latinx women who lived in the Little Chile neighborhood were described as “immodest and impure to a shocking degree. . . . By night . . . they were only prostitutes.”7 Finally, gender nonconformity in appearance or behavior across racial groups has historically been perceived as a sign of sexual deviance and depravity by police, leading to pervasive profiling and verbal and physical abuse of transgender and gender-nonconforming women as sex workers, and of gender-nonconforming lesbians as pimps, or “promoters,” of their more feminine partners.8
Together, these narratives serve as the backdrop for policing of prostitution then and now. While the policing of prostitution has at times been justified as “protection” or rehabilitation of “wayward” (white) women, police have consistently perceived women of color’s bodies as a sexualized threat in public spaces and have punished them through profiling, criminalization, and violence.
As historian Clare Sears elaborates, in the second half of the nineteenth century, emerging urban police forces took on the regulation of gender and sexual mores through street policing and vice operations.9 From its inception, the enforcement of prostitution laws evoked “spatial governmentality,” requiring the removal from public spaces of individuals branded as signs of disorder—similar to today’s broken windows policing. These “problem bodies,” as Sears describes them, included “Chinese immigrants, prostitutes, and those deemed diseased or maimed,” who were treated as “urban blight” and subject to “spatial control” through “exclusion, confinement, concealment and removal.”10 In addition to selective enforcement of prostitution laws against Chinese women, in 1865, the San Francisco government also issued an “order to remove Chinese women of ill-fame from certain limits of the city.”11 The following year, 137 women—virtually all Chinese—were arrested as “common prostitutes,” and the chief of police “boasted that he had used the law to expel three hundred Chinese women.”12
Enforcement of prostitution laws has also always been highly discretionary and selective. According to Sears, “Early attempts to police prostitution targeted Chinese and Mexican women, overlooking similar acts by European Americans.” Sears points to an 1855 cartoon as evidence “depicting two policemen forcefully arresting fully clothed Chinese women while ignoring the blatant sexual display of a semi-naked European American woman who beckoned a man into a brothel.”13 Racial disparities in enforcement were justified by framing “Spanish and Chinese” women engaged in prostitution as “subhuman ‘vile characters’ who ‘infested’ the city and deserved to be ‘treated with little mercy.’”14
In Chicago’s Levee district, similar principles were applied to clear public spaces and neighborhoods of “black women of bad character,” who were subjected to fines up to twenty times those imposed on white women.15 Brothel raids were also a daily occurrence in which “portraits of unsafe and disorderly black women and their places of work were vividly juxtaposed against descriptions of gentility and the grandeur of the Levee’s [white] parlor houses and their white employees.” The presence of the sex trade in the Levee was attributed to the neighborhood’s “unclean and reprobate immigrants and lodgers ‘of African extraction.’” Racist tropes were projected onto the bodies of Black women who worked in the area, who were depicted as “dark forms lurking in alleyways and doors eager for prey,” “dusky female characters of whom the police have a wholesome dread,” and “of such marvelous strength that no officer on the force would undertake to arrest her single-handed.” One Black woman, dubbed “the Bengal Tigress,” was described as having “the explosive violence of a predatory animal,” and “always was ready to battle with the police when her place was raided.” According to Blair, “A composite sketch of the black prostitute . . . pulls together a strange bundle of excesses. Extraordinarily large in height and girth and possessing brutish strength and cunning, she was prone to violent rages and harbored an insatiable appetite for criminal activity . . . in sheer strength and violence of character, she was larger-than-life.” Such imagery firmly removed Black women from the realm of femininity.
As a result, prostitution arrests in turn-of-the-century Chicago evidenced significant racial disparities—as they continue to do today. In 1922, Black women made up less than 5 percent of the city’s population, yet
Black women accounted for one third of all women arrested as inmates in houses of prostitution in Chicago. By 1924, black women consistently composed more than half. . . . At the outset of the Great Depression, black women’s proportion of all such arrests had increased to an astounding 78 percent. The same pattern held for women arrested as keepers of houses of prostitution. In 1922, 28 percent were African American, but in 1930, 70 percent of all women arrested for running a house of prostitution were black.
Eventually, Chicago city officials seeking to expand business districts deployed police with orders to push the sex trade into the Black Belt of the city’s South Side, which in turn became an increasingly criminalized neighborhood, leading to continuing police harassment and arrests of Black women in the sex trade. Similar forces resulted in the closure of San Francisco’s Barbary Coast, pushing prostitution into Chinatown and the Tenderloin and Mission districts, all predominantly populated by people of color, who continued to make up a disproportionate number of arrests.
In 1919, the federal government promoted model legislation known as the Standard Vice Repression Act, which ultimately led every state, and most municipalities, to enact local laws that prohibited acts of sexual solicitation and negotiation; banned the performance of sexual acts for commercial gain; and created a stigmatized status called “common nightwalkers,” which referred to individuals with a prior history of prostitution. While “common nightwalker” provisions have since been struck down on constitutional grounds, their legacy lives on in the daily policing of prostitution, where in many jurisdictions simply being or being perceived to be a “known prostitute” is an element or evidence of prostitution-related offenses.16
In the early twentieth century, vagrancy laws—now retooled into offenses like “loitering for the purposes of prostitution”—were used to target people believed to be engaged in prostitution, including transgender people.17 In the 1940s and 1950s, police in San Francisco and other cities waged a “war on vice,” which targeted “homosexuals,” “prostitutes,” and women in bars.18 Raids of queer bars, although primarily framed as attacks on white gay men, also captured women of color, such as Ethel Whitaker, a butch Black woman arrested in the infamous 1961 raid of the Tay-Bush Inn.19 Lesbians—often conflated with “prostitutes” in the public imagination and sometimes engaged in the sex trades—were targeted for arrest for vice-related offenses, including “frequenting a house of ill repute.”20
Policing of prostitution now takes place through a combination of street-based enforcement of “loitering for the purposes of prostitution” statutes in the context of broken windows policing, “buy-bust” operations in which undercover officers lure targets into making agreements to trade sex for money in person or online, vice raids of locations in which prostitution is believed to be taking place, federal anti-trafficking raids, and civil nuisance enforcement designed to shutter places of “ill repute.”
The presumed association between sex work, the drug trade, and violent crime is frequently used to justify sweeps of areas where prostitution is believed to take place. Additionally, vague “quality of life” regulations such as “loitering for the purposes of prostitution” or disorderly conduct allow police officers considerable discretion when determining who is disorderly or what constitutes evidence of intent to prostitute. Both are clearly very much in the eye of the beholder, whose perceptions are deeply informed by the operation and reinforcement of controlling narratives framing women of color, including trans women of color, as inherently and always engaged in sexually deviant activity.21
Associations between gender nonconformity and involvement in the sex trade are so prevalent that pervasive profiling of trans women has been dubbed “walking while trans.” GiGi Thomas, formerly an outreach worker with Helping Individual Prostitutes Survive (HIPS) in Washington, DC, reports that police “arrest all transgender women in certain areas on suspicion of their engagement in prostitution”22 Thirty percent of Black trans women, 25 percent of Latinx trans women, 23 percent of Native trans women, and 20 percent of Asian trans women who participated in the 2015 National Transgender Survey and reported interactions with police who knew they were transgender described being profiled as being engaged in prostitution.23 Bamby Salcedo, one of the founders of the TransLatina Coalition in Los Angeles, told Human Rights Watch, “We’ve done protests in front of the police department about the continuous harassment to the community members. . . . They have to go to the store, they have to take a bus, and just because they are walking they get stopped and harassed and sometimes arrested just because of where they are and how they are.”24 Sixty-three percent of young women and trans men who participated in a study of LGBTQ youth in the sex trades in New York City had been stopped by the police; over half believed racial, gender, and sexual-orientation-based profiling was the reason.25 Kate Mogulescu, an attorney at New York City’s Legal Aid Society who runs a program representing people charged with prostitution-related offenses in criminal cases, explained, “There is no other law that I can think of that gives the police that much power and discretion. . . . What you see is simply identity-based policing.”26
Racially gendered profiling and a focus on street-based prostitution combine to produce continuing racial disparities in prostitution arrests.27 According to one ACLU study, in the 1970s it was “seven times more likely that prostitution arrests will involve black women than women of other races.”28 A more recent study of prostitution arrests in three North Carolina cities between 1993 and 2000 found that “law enforcement’s focus on outdoor prostitution appears to result in black females being arrested for prostitution at higher rates than their white counterparts and at rates disproportionate to their presence in online advertisements for indoor prostitution.”29 A 2016 lawsuit filed by the Legal Aid Society of New York noted that 85 percent of people charged for loitering for purposes of prostitution in New York City between 2012 and 2015 were Black and Latinx, groups that together make up only 54 percent of the city’s population. Half of Black transgender respondents to the 2015 US Transgender Survey who were or were perceived to be involved in the sex trades were arrested, reporting higher arrest rates than non-Black respondents.30 Black women are also more likely to be charged with more serious prostitution-related offenses. For instance, Gloria Lockett, a Black woman who would later go on to codirect the sex workers’ rights organization COYOTE (Call Off Your Old Tired Ethics), was once arrested for felony “pimping” because she was holding another woman’s money for her. According to Lockett, “Racism . . . meant that she was accused of felony pimping while police charged the white women with simple misdemeanor prostitution.”31
The Legal Aid Society litigation also highlights the ways in which antiprostitution enforcement facilitates racialized gender policing and punishes women of color for dressing “provocatively,” thus reinforcing historic controlling narratives. Police complaints cited women’s “tight black leggings,” “mini dress with bra strap showing,” “tight jeans and tank top showing cleavage” as evidence of intent to engage in prostitution.32 Drive by the clubs on the city’s Lower East Side on any given night and you’ll see plenty of white women similarly attired, but arrest stats clearly demonstrate that they are not being policed in the same ways.
As Sylvia Rivera pointed out decades ago, feminine clothing on trans women is particularly likely to result in arrest. Where my client, a Black trans woman, was concerned, the officer simply told her, “We know what you trannies are doing out here,” before issuing her a ticket for “loitering for the purposes of prostitution” as she stood outside a convenience store where she had just bought a snack with a group of friends. When she went into the local precinct to complain, she was violently tackled to the ground by four officers, arrested, handcuffed to a railing for eight hours, subjected to transphobic slurs, and taken for a psychiatric examination—to the bewilderment of the examining doctor, who told the police there was absolutely nothing wrong with Ryhanna that they themselves hadn’t inflicted. As Tiffaney Grissom, a Black trans woman and one of the plaintiffs in the Legal Aid lawsuit, put it, “Whether you are ’hoing or not ’hoing . . . even if you look like you might be trans, you are going to jail. . . . It is a stigma that comes with being trans. You are automatically a sexual object or a sex worker. You are no longer just a normal person.”33
Another night, the same client was walking down the street when officers accosted her, claiming that she had nine condoms in her purse and that these were evidence of intent to engage in prostitution. In fact, she was walking to a McDonald’s to grab a bite after a night at the club—as many of us have been known to do. In the context of prostitution enforcement, the presence or possession of condoms commonly serves as a tool of gendered racial profiling. Bianey Garcia, a leader at Make the Road New York, has frequently recounted similar treatment. One night in 2010 she was walking home hand-in-hand from a club with her boyfriend when eight undercover officers stopped them, threw them both up against a wall to frisk them, and emptied Bianey’s purse onto the sidewalk. She was carrying three condoms, which the officers then cited as evidence to justify her arrest for engaging in prostitution.34 Forty-four percent of respondents to the 2015 US Transgender Survey said the police considered condoms to be evidence of prostitution.35 The study of LGBTQ youth in the sex trades in New York City found that 15 percent reported having condoms confiscated by police, leaving many confused and angry.36
Although many people I talk to about the use of condoms to criminalize react with shock, the practice has been going on for some time. As we were researching Stonewalled in 2003 and 2004, organizations across the country reported that police were seizing condoms found on or near women and citing them as evidence of prostitution. The practice was so pervasive that many believed that there was a “three condom rule”—anyone caught with three or more condoms would be charged with prostitution. A decade later, Human Rights Watch found similar perceptions.37 In reality, there is no magic number—I have seen criminal complaints listing a single condom as evidence of intent to engage in prostitution-related offenses.38 There is in fact no legal limit on the number of condoms anyone can carry, but the lived reality is that police officers, by exercising their discretion to confiscate and cite them as evidence of wrongdoing, enact and enforce an unwritten rule that places people’s health and safety at risk.
In 2008, the Sex Workers’ Project at the Urban Justice Center (SWP), which provides legal services to people involved in the sex trades, learned about a state bill that would ban the confiscation and citation of condoms as evidence, introduced by Senator Velmanette Montgomery, a Black woman representing sections of Queens, New York, where women and service providers reported this practice. In 2009, soon after I joined SWP as director, we began organizing a campaign for passage of the legislation, building a broad-based coalition of advocates for civil rights, police accountability, sex workers’ rights, harm reduction, HIV prevention, immigrant rights, women’s rights, reproductive rights, LGBT rights, and antitrafficking groups. These groups and others directly impacted by condom-based racial profiling called on the police commissioner, district attorneys, and legislators to put an end to the practice because it placed their health, safety, and reproductive rights at risk.
When policymakers demanded evidence of the practice’s effects, we gathered copies of criminal complaints and surveyed our constituencies, publishing the findings in a 2012 report, Public Health Crisis: The Impact of Using Condoms as Evidence of Prostitution in New York City. Almost half the people we surveyed—the vast majority Black and Latinx women—reported that at some point they had not carried condoms for fear of police harassment or arrest.39 Over half reported that their condoms been taken by police officers.40 One Black Puerto Rican gender-nonconforming respondent asked, “Why do they take our condoms? Do they want us to die?” A Latinx reported an officer telling her as he took her condoms, “If you don’t have this, you won’t have sex.”41 The Red Umbrella Project commissioned artwork illustrating quotes gathered from people surveyed, and turned them into postcards to legislators. Survey results were also incorporated into Criminalizing Condoms, a report tracking the practice in seven countries including the United States and presented at the 2012 World AIDS Conference in Washington, DC.42 Around the same time, Human Rights Watch partnered with community organizations in five cities, including New York City, to document the practice, and launched a year-long advocacy campaign to support and amplify local efforts to fight it.43
Ultimately our efforts over a three-year period secured partial policy and legislative changes by police, prosecutors, and, eventually, New York State lawmakers. Thanks to counterorganizing by a small minority of antitrafficking advocates who collaborated with prosecutors, condoms can still be used as evidence of trafficking, promoting, and other prostitution-related offenses. Trafficking survivors—and the vast majority of organizations who serve them—argued that continuing to use condoms as evidence of trafficking and promoting harms the very people that this group of misguided advocates purport to protect by creating strong disincentives to traffickers to make condoms fully and safely available to the people they exploit.44 It also creates strong disincentives for businesses to have condoms available on the premises—and causes some to store them in ways that decrease their effectiveness.45 This reduces access for the entire community, and for people who may in fact be trafficked. It also perpetuates the disincentive to carry and distribute condoms for fear of police harassment and prosecution. One trans Latinx testified to legislators that she was arrested with a friend while walking down the street; her friend was charged with loitering for the purposes of prostitution and she was charged with promoting her friend because she was carrying condoms. Finally, given that any prostitution involving a person under the age of eighteen is legally deemed human trafficking, young people distributing condoms to peers continue to bear the risk of prosecution for the serious offense of trafficking.
Activists in DC and San Francisco have similarly achieved partial policy changes and continue to advocate for a full ban on the use of condoms as evidence, as do New Yorkers: in 2016, the New York City Council Young Women’s Initiative recommended a full ban on the confiscation or citation of condoms as evidence of intent to engage in any prostitution-related offense, in all circumstances, without exception.46 Additionally, at the national level, the President’s Task Force on 21st-Century Policing recommended that police departments follow the recommendation of the President’s Advisory Council on HIV/AIDS and stop using condoms as evidence.47
Advocates have also used these campaigns to spotlight the racially discriminatory gender profiling inherent in the policing of prostitution, to argue for striking down statutes that facilitate it, such as “loitering for purposes of prostitution,” and to deprioritize antiprostitution enforcement as part of a broader decriminalization agenda. In this way, campaigns to stop the use of condoms as evidence represent important examples of listening for the ways in which women and trans folks experience policing differently, and eliminating mechanisms police use to engage in racially gendered profiling.
In addition to racial profiling and discriminatory arrests, women of color who are or are perceived to be engaged in prostitution continue to be subjected to verbal harassment and abuse and police violence.48 Nearly nine out of ten respondents to the 2015 US Transgender Survey who reported involvement in the sex trades also reported police harassment, assault, or mistreatment.49 Analysis of data from three studies of street-based prostitution in a Midwestern city spanning the years 1998 to 2004 found that 26 percent of women had experienced some form of police violence—including slapping, kicking, choking, stalking, or robbery—in the past year.50 In two New York City studies, 30 percent of street-based sex workers and 14 percent of indoor sex workers reported physical violence by police officers, including kicking and beating.51
Behind the numbers are individual stories of police violence. When I was researching Stonewalled, advocates on Chicago’s West Side told us about a group of Black women officers who would beat Black women in the sex trade, then take their shoes from them, forcing them to walk in the snow in bare feet.52 In Queer (In)Justice, my coauthors and I described in detail the case of Duanna Johnson, a Black trans woman living in Memphis who was profiled and arrested for prostitution in the absence of any evidence other than being Black, trans, and walking down the street late at night. She was then held down by one officer and beaten about the head and pepper-sprayed in the face by another one, who had methodically wrapped metal handcuffs around his knuckles. She later said, “My eyes were burning, my skin was burning. I was scared to death. . . . I didn’t feel like I was a human being.”53 In 2012, I represented a Latinx immigrant trans woman whose head was repeatedly slammed to the ground by arresting officers during an indoor sting operation, breaking her tooth and bones in her face. When her skirt rode up during the assault, exposing her genitals, an officer grabbed them and sadistically twisted them while all the officers involved taunted her as a “faggot.” These are but a few of myriad instances of daily physical abuse by police officers of women of color in the sex trades.
Police violence extends to people police believe to be trading sex, no matter how flimsy the evidence. One August 2008 evening in Galveston, Texas, the mother of Dymond Milburn, a twelve-year-old honor student, sent the girl outside around eight o’clock to flip a circuit breaker that had tripped as she was getting the children ready for school the next day. Soon after, three plainclothes police officers jumped out of a van and grabbed Dymond, saying “You’re a prostitute; come with me.” Dymond tried to get away, began screaming for her father, and grabbed on to a tree, reasonably fearing she was being abducted from her front yard by strangers. One of the officers covered her mouth while the other beat her about the face and throat. It turns out the officers were responding to a call about three white women believed to be engaged in prostitution in the area, but picked up the unmistakably Black girl on the grounds that she was wearing “tight shorts,” although Dymond maintains she wasn’t. Dymond was ultimately hospitalized with a bloody nose, black eyes, sprained wrist, and injuries to her ear and throat. She continues to suffer from nightmares that police will kidnap her, rape her, and cut off her fingers.
It would have been bad enough if the case had ended there, but several weeks later police showed up at Dymond’s school to arrest her for assault on a police officer, an offense she was twice tried for. The first trial ended in a mistrial; the second, in a hung jury in which a single juror voted to convict her.54 Piling injury upon injury, her civil suit against the officers was dismissed in 2010 on the grounds that, while they may not have had reason to stop her, the fact that Dymond ran away from three strangers she believed were trying to kidnap her gave rise to the requisite suspicion such that she was not entitled to resist the arrest.55 In the end, the message is clear: Black women and girls, no matter how young or how innocuous their behavior, will be perniciously profiled as being involved in prostitution and then policed, violated, punished, and denied justice on the assumption that they are “prostitutes” who are so monstrous and imbued with superhuman physical strength that they must be subdued with tremendous force.
As detailed in chapter 4, the policing of prostitution is also a primary site of extortion of sex and sexual violence by police officers. According to a 2008 participatory research study conducted by the Chicago-based Young Women’s Empowerment Project (YWEP), “Many girls said that police sexual misconduct happens frequently while they are being arrested or questioned.”56 One participant told researchers, “He told me he would let me go if I gave him some, but then he still took me down to the station.” A subsequent study showed that police represent the largest slice of a pie chart depicting sources of violence reported by young women in the sex trades, while violence by individuals (clients, “pimps,” and others) make up much smaller slivers. Eleven percent of all incidents of violence reported by young people in the sex trades involved police sexual violence, and police sexual violence made up 15 percent of all complaints of police violence.57 LGBTQ youth in the sex trades in New York City similarly reported being propositioned or extorted for sex by police officers.58 Rates of sexual assault increased for homeless transgender people. In Washington, DC, a survey by the community organization Different Avenues found that one in five sex workers approached by police had been asked for sex.59 For instance, Toni Collins, cofounder of DC’s Transgender Health Empowerment, reports that countless officers would tell her, “You do it with me, or I’m going to arrest you for prostitution.”60 A DC police sergeant admitted, “Everybody messes over the prostitutes.”61 Earlier studies by SWP found that up to 17 percent of indoor and outdoor sex workers reported sexual harassment or violence by police officers.62 In the analysis of three studies of a Midwestern city, 15.4 percent of women reported being forced to have sex with a police officer, almost half (45.5 percent) had engaged in paid sex with police, and 18 percent reported being extorted for free sex.63 Nationally, more than 25 percent of respondents to the 2015 US Transgender Survey who were or were perceived to be involved in the sex trades were sexually assaulted by police, and an additional 14 percent reported extortion of sex in order to avoid arrest.64 Despite these realities, police are often where the greatest investment is made to reduce violence against women in the sex trades.
One of the many stories behind these numbers is one that has stayed with me for over a decade—that of a Navajo trans woman I met in 2003 at a street outreach van in Los Angeles when researching Stonewalled. She told me she had been raped by two police officers who initially said they were taking her to jail for prostitution, but instead took her to a secluded location to brutally violate her. They did not use condoms. The words yelled at her by police officers on this and other occasions made clear that the officers felt entitled to her body because she is Native, “a fucking whore,” and “a fucking faggot.” When she called for help, paramedics laughed at her, leading her to believe “nobody gives a shit about me.”65 When I asked about her on my next trip to Los Angeles, I was told she had returned home to Arizona in an effort to escape constant police and community violence.
Violence and criminalization of people in the sex trades also takes place in the context of antitrafficking enforcement. In Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons, published in 2009, researcher Melissa Ditmore reports that Latinx, Asian, and European trafficking survivors were repeatedly arrested in police raids on brothels and other sex work venues—sometimes up to ten times—convicted of prostitution, and sent to jail without ever being identified as having been trafficked. Reflecting broader policing trends in the United States, Latinx and Asian women were more likely to have been arrested for prostitution than Eastern European women.66 The study found that trafficking raids were also accompanied by physical and sexual violence. One Asian woman who had been trafficked reported that during a raid “a police officer struck me in the back of the head with the back of a gun and I fell to the floor and I passed out. . . . I was struck in the head really hard. . . . A female officer . . . opened up my skirt and revealed my undergarments in front of everyone to see if I was hiding anything on me. I was scared.” She later reflected, “A better way to leave my situation would be anything that didn’t involve the police.” Another service provider said, “What ICE [Immigration and Customs Enforcement] calls a rescue is barging into someone’s apartment at 6 a.m. and terrorizing them.”
Social service providers also described sexual harassment and other police misconduct in the context of raids and their aftermath. One service provider working with people who have been trafficked said of the local vice squad, “The typical stuff that I hear is that they are having sex [with women who have been trafficked], they are getting blow jobs or hand jobs, then they turn around and arrest people. They are not letting them use the bathrooms afterward, and girls have pissed themselves. Then they steal from them. I have heard that from a lot of people.”
Others described post-raid questioning of trafficking survivors without an attorney present in which women were subjected to intimidation and abusive interrogation tactics designed to “break them”—into admitting they are trafficking victims. I once heard an FBI officer describe with pride her approach to young women she “rescued” from the sex trade—“I tell them, if they run, I will hunt them down.” It was hard to distinguish this statement from those I have heard countless times from abusers of all kinds.
In other words, unfortunately, antitrafficking raids—like antiprostitution raids (indeed, they are often one and the same)—are often accompanied by violations of the rights of the very people they are purported to protect.
Much of the discussion of sexuality-based policing of LGBTQ people has focused on gay men, rendering invisible queer women’s experiences of policing—including in the context of prostitution enforcement. Yet, policing of sexuality takes place on a spectrum that includes lesbian, bisexual, and queer women of all gender identities, who are also punished for their “very deviance from heterosexual, monogamous norms [in order to] render the public sphere ‘safe’ from non-normative sexuality.”67
In the 1980s Joan Nestle described police attacks on Black lesbians in New York City’s Washington Square Park.68 Sadly, such violence is not a relic of a distant past: in 2009, I filed suit on behalf of two women, Jeanette Grey and Tiffany Jimenez, who had been beaten outside a Brooklyn club on “ladies’ night” by police officers who called them “dyke-ass bitches.” Jeanette is Black and gender nonconforming; Tiffany, a petite Latinx femme who was wearing a white party dress and heels. Both were described as aggressive—more a product of the fact that they were assumed to be queer than their behavior—and both were thrown to the ground by multiple officers, beaten, and arrested for “disorderly conduct.” Jeanette’s tooth was broken when an officer slammed her face against the hood of the police car.
The next morning, Jeanette sent out an e-mail calling for video footage and community support. The Audre Lorde Project (ALP) and Make the Road New York immediately mounted a campaign calling for charges against the two women to be dropped, held a rally opposite the police station where they had been taken, and organized a march from the station to the club where they had been violated. As we marched through the community, residents came out to chant familiar refrains like “No Justice, No Peace, No Racist Police!” Some onlookers were startled to see that the focus of the march was two young women, and to see rainbow flags. But then many picked up the chants again, demonstrating the power of organizing around common experiences to build bridges across gender and sexuality within communities of color.
Further examples of police violence against lesbians and gender nonconforming women of color, and of resistance to it, can be found throughout this book.
At times, resistance to police violence has explicitly focused on the experiences of women of color in the sex trades. In 1967, Reverend Cecil Williams in San Francisco, a leader in the fight against police brutality, organized around the case of “three Black prostitutes [who] were brutally beaten by police”; he formed an organizing committee, demanded investigations, and filed law suits. According to historian Mindy Chateauvert,
Williams understood from this experience that decriminalizing prostitution was both a women’s issue and a race issue. Police got away with brutalizing street-based sex workers because so many were women of color. Race discrimination by “plush hotels” that refused entry to black prostitutes led to a racially skewed pattern of arrests and sentencing. . . . The biggest danger to women of color was the police, not the pimps, not the customers.69
This theme was picked up almost fifty years later by Atlanta’s Solutions Not Punishment Coalition (SNaPCo), which in 2016 issued The Most Dangerous Thing Out Here Is the Police, a report based on surveys of trans people that concluded:
Trans and gender nonconforming people and especially trans women of color are currently being profiled, sexually abused, and physically and emotionally endangered by the actions and attitudes of [Atlanta Police Department] officers. Instead of protecting the lives of trans people, our police department is actively contributing to making life unsafe for us and our families.70
Eighty-six percent of trans people surveyed had been approached by the Atlanta Police Department in the preceding year; almost half were targeted for prostitution-related offenses. Nearly one in twelve trans women surveyed had been forced to engage in sexual activity with, or had experienced unwanted sexual contact by, an Atlanta police officer within the previous year.
SNaPCo advocates for systemic changes to address the trends highlighted by the survey, calling for municipal authorities to thoroughly investigate police misconduct against trans people, to release and stop arresting trans people until policies are in place that will increase safety and dignity in police custody, and to address and repair harm to individuals and the community. Recognizing that police will use any law vague enough to police gender and punish gender nonconformity among low-income and homeless trans people of color, it is also calling for passage of an ordinance to decriminalize not just prostitution-related offenses but all so-called quality-of-life ordinances used to target, harass, and sexually assault trans people. These include “idling and loitering,” “pedestrian walking in a roadway” or “obstructing traffic,” “prohibited conduct in a park,” “disorderly conduct,” “obstructing a sidewalk,” and “breach of the peace.” SNaPCo also demands investment in job training and placement programs specific to trans and gender-nonconforming people; expanded funding to “community-based, gender-affirming services including harm reduction based drug treatment; safe and affirming housing, physical and mental health care, social services and education”; and accessibility and accountability of services, facilities, and programs for survivors of violence—including police violence—to trans survivors.
Police profiling and discriminatory enforcement of antiprostitution laws carry devastating consequences. Conviction of prostitution-related offenses renders immigrants immediately deportable, and in many jurisdictions operates as a complete bar to public housing and certain professions, regardless of immigration status. It can also interfere with access to private housing and child custody. After Hurricane Katrina, discriminatory enforcement of prostitution laws in Louisiana brought harsh collateral consequences of prostitution convictions into particularly sharp relief.
For two centuries, racialized policing of sexualities deemed deviant was facilitated by the existence of a “crime against nature” law that penalized nonprocreative sex acts such as sodomy.71 In 1982, Louisiana added a “crime against nature by solicitation” (CANS) law that singled out solicitation of oral or anal sex for harsher punishment, including mandatory registration as a sex offender for fifteen years to life.72 Predictably, a law rooted in condemnation of sexual acts traditionally associated with homosexuality, enforced in a context in which Black women’s sexualities have historically and continue to be framed as deviant, was discriminatorily applied to low-income Black women, including transgender women. Consequently, until 2013, when the registration requirement was struck down, 97 percent of women in Orleans Parish on the sex-offender registry were there because of a CANS conviction; an overwhelming majority were Black.73
Police and prosecutors enjoyed unfettered discretion about when and who to charge with CANS, creating conditions ripe for rampant profiling and targeting of Black low-income women. That decision could literally change the entire course of a person’s life by determining whether they could be convicted of a misdemeanor under the prostitution statute or a felony under the CANS law, which would result in mandatory registration as a sex offender.74 Additionally, by increasing penalties and consequences, the threat of a CANS conviction also gave police greater leverage to extort sex.75
The CANS law first came to my attention in 2009. While working as the director of the Sex Workers Project, I was contacted by Laura McTighe, a board member at Women With a Vision in New Orleans. WWAV was founded by and for Black women in 1991 to respond to the spread of HIV/AIDS by engaging in harm reduction and policy advocacy that challenges the criminalization of women of color.76 McTighe was working with WWAV’s executive director, Deon Haywood, to raise national awareness of heightened enforcement of CANS following Hurricane Katrina. According to Haywood:
This issue first came to our attention in 2007 when a woman came into our office and showed us her driver’s license with a big orange sex offender [marking] on it. Since then we’ve heard dozens of stories from women who are on the registry because of this charge. . . . They are grandmothers and mothers. They have struggled with poverty and many have struggled with addiction. They did what they had to do to survive, to put food on the table. Not only are many of the women we are talking about . . . survivors of rape and domestic violence, they are also survivors of police violence, including sexual harassment, physical abuse, improper strip searches and rape by law enforcement officers. . . . Many of the [domestic violence] shelters here won’t take them, the drug treatment programs won’t take them, neither will the homeless shelters. . . . They have served their time, but now they have to serve an additional sentence, often a life sentence.77
After initial legal research into the viability of several constitutional claims, I approached the legendary Louisiana lawyer and law professor Bill Quigley, then the legal director of the Center for Constitutional Rights (CCR). In collaboration with WWAV, we convened a meeting of women’s health and reproductive justice organizers, policy advocates working on criminal legal reform, and HIV/AIDS activists to map out a campaign to eliminate the CANS sex offender registration requirement. Litigation, in addition to legislative advocacy, would be one tool to advance the overall goals of the campaign.
We filed suit in February 2011.78 The experiences of Hiroke Doe, one of the anonymous plaintiffs in the case, was representative of those of many transgender women of color whose gender identity and sexuality were routinely policed through the CANS law. As a teenager just coming out as transgender, Hiroke would meet men on the street who would express interest in her. Assuming she was soliciting them for money, police arrested and charged her with CANS. Like many transgender women, she elected to plead guilty in exchange for immediate release, rather than risk being jailed pretrial with men in the Orleans Parish Prison.79 Hiroke’s experiences differed from that of transgender women across the country only in that she was shocked to learn, upon meeting with her probation officer, that the offense she had pled to was a felony and required sex offender registration.80
Ongoing discrimination and marginalization faced by Black women was compounded by CANS registration requirements. As one woman said, “People won’t hire you if you’re black, gay, trans, and then now you got this on your license too?”81 Already denied access to services, Black women forced to register as sex offenders faced insurmountable obstacles: think of all the places you have to show ID—at the bank, at the bar, enrolling your children in school. Now imagine doing that with “sex offender” on it. One woman described the registration requirement as a modern-day scarlet letter, saying, “I am trying to put that in my past—but it’s not gonna be in my past because it’s in my present, and it’s going to be my future for the next thirteen years.”82
One of the many strengths of the litigation, advocacy, and organizing campaign we mounted is that it linked all populations whose sexuality is framed as deviant and whose struggles to survive are criminalized. As one of our clients put it, “They only charge poor Black women, trans women and gay men with this charge—we’re all queer out here.”83 Following this lead, we challenged the criminalization of all sexualities deemed “deviant” and the use of policing and punishment of sexual and gender nonconformity to further the gentrification and ethnic cleansing of New Orleans. In the end, these efforts not only resulted in the elimination of the CANS sex offender registration requirement in Louisiana in 2012 but eventually in the removal of more than eight hundred people who were on the sex-offender registry as a result of CANS.
Although the consequences of CANS charges in Louisiana lessened as result of our campaign, racially discriminatory enforcement of prostitution statutes continues. The moral of the story is that notwithstanding the success of short-term efforts to strike down unfair laws and eliminate the practices that facilitate profiling and punish women of color under the guise of prostitution enforcement, which are helpful harm-reduction strategies, the most frequent recommendation to end police violence from people in the sex trades is the decriminalization of prostitution. Some claim that decriminalizing prostitution would promote the violation and exploitation of women of color in the sex trades. But the reality is that for many, police, not pimps, are the primary source of violation and vulnerability to exploitation. Our task, then, is to address the root causes of violence against people in the sex trades by listening to and empowering them. The “demand” driving involvement in the sex trades is not one that can be policed and punished away—it is the need for housing, food, shelter, gender-affirming health care, and living wages. Moreover, both history and present-day enforcement clearly show us that decriminalizing prostitution is not enough if more general offenses are left in place that can and will be used to achieve the same ends.