Poor, Transgender and Dressed for Arrest
By Ginia Bellafante
September. 30, 2016
Measured in terms of cultural attention, it can seem like a very enlightened time to be living with an unconventional gender identity. The rights of transgender people have been a concern of presidential politics; “Transparent,” the comedy about a middle-aged male political scientist in the process of becoming female, is popular and in its third season; gender-neutral bathrooms are on the rise, and opposition to them puts challengers in the position of seeming benighted and cranky, as though they hankered for a world still dominated by three television networks.
And yet, at 6:30 a.m. on Feb. 3, as she was walking toward a bus stop in the Bushwick section of Brooklyn, Natasha Martin, who is 38 and African-American, and had been thrown out of her mother’s home in Virginia as a teenager for preferring to wear girls’ clothes when she was a boy, did not encounter this new collective awakening. She had just lit a cigarette when a white police van pulled up and the officers inside asked her who she was, whether Natasha Martin was her real name and if she was aware that the area where she was standing was known for prostitution.
Ms. Martin joked at the time that she hadn’t seen any signs, she recalled one recent afternoon. “I said: ‘Who am I supposed to be prostituting to? There is no one here!’” At that point she was taken into custody, under a 40-year-old statute in the state’s penal code — 240.37 — that allows the police broad discretion in arresting anyone they deem to be loitering for the purpose of engaging in prostitution.
How can this purpose be discerned? The law is vague enough to make almost any posture vulnerable to suspicion. You could be arrested while talking to two men on a corner; while talking to someone through a car window; while walking down the street with a bottle of Korbel; for going to your job selling sofas; if it happens that you have worked as a prostitute before; just for wearing something an officer decides is too provocative.
On the morning of her arrest, Ms. Martin had set out from a friend’s apartment wearing a Lane Bryant tracksuit. The charges against her were eventually dropped but not before she was made to appear in court five times.
Over the past several years, the Legal Aid Society of New York has handled so many of these cases of wrongful arrest, particularly among transgender women who are black and Hispanic, that it was expected late last week to file a federal civil rights suit in the Southern District of New York on behalf of several plaintiffs — Ms. Martin is one of them — challenging the constitutionality of the law. Between 2012 and 2015, the Legal Aid Society says, nearly 1,300 people were arrested in New York City under the loitering law. More than 600 were convicted, and close to 240 served some time in jail. During that period, five precincts in the city were responsible for more than two-thirds of the arrests, each of the precincts serving neighborhoods that are predominantly black and Hispanic, in the Bronx and central Brooklyn.
The deployment of Statute 240.37 is, in essence, a perverse equalizer, extending the indignities of stop-and-frisk policing, experienced by so many young black and Hispanic men, to an entire population of women already facing myriad forms of discrimination. In one instance, the suit notes, over the course of two hours on a June evening last year, officers near Monroe College in the Fordham section of the Bronx arrested at least eight transgender women. The women told their lawyers that one of the officers said they were conducting a sweep to let “girls like them” and their friends know that if they were seen hanging around after midnight they would be hauled off.
The Police Department declined to comment on the suit until it was filed.
Some of the neighborhoods where transgender women are being arrested with some regularity — Bushwick, for example, and Hunts Point in the Bronx — are undergoing rapid gentrification, leading to the obvious supposition that the greater mission is to instill enough fear in the women to make them leave, and congregate somewhere else. Ms. Martin had been arrested 14 other times under the loitering statute in the early 2000’s, she told me, in most instances while she had been in the meatpacking district, as it was evolving from a place of bohemian and transgressive club life to a world of Croque-Monsieur and Stella McCartney.
The policing of female sexuality is something bourgeois women talk about often, with little understanding that what exists largely in the realm of metaphor for them remains, for poor women, a very literal and criminalizing surveillance of how they present themselves when they leave the house. Again and again, the Legal Aid Society has represented women arrested while wearing short dresses or high heels or tight pants and, in one bizarre instance, that well-known symbol of sexual seduction: a black pea coat. Just as it is unthinkable that the same strictures would apply to a black man drinking a tallboy on a sidewalk in East New York and a private equity investor having a glass of Pinot Noir on his stoop on East 93rd Street, it is inconceivable that a woman in Chelsea would be stopped by the police on her way to Barry’s Boot Camp in cropped leggings and a sports bra.
The loitering law that has caused so much of this unnecessary contact with the legal system was developed in the 1970’s, at a time when vice was rampant in New York City. Over the years, laws almost identical to 240.37 have been found unconstitutional in six other states, including Florida. The continued application of others suggests that certain styles of policing, far from ensuring law and order, merely articulate the ways in which law enforcement seems to function in a vanished world. As police departments across the country try to incorporate more sensitivity and difference awareness training into their curriculum, to heal the ruptures and divisions that have seemed so systemic, they might include a few tutorials on how modern women dress, and what clothes tell us about one another, and don’t. Let the reform begin with a subscription to Vogue.