Thank you to Deanna Glickman for writing JGSPL’s first blog post!
As we approach the Transgender Day of Remembrance on November 20th, a day set aside to memorialize those that have lost their lives due to transphobia, we should also take the time to reflect on those who are alive but lose their liberty because of their transgender identity. Transgender people face unparalleled discrimination and violence in the criminal justice system, from harassment by police to physical and sexual assault while incarcerated. Accordingly, the rates of incarceration are disproportionally high for transgender people with 16% incarcerated at some point in their life. This disparity becomes even starker for black transgender people, 47% of whom have been incarcerated at some point in their lives. These alarmingly rates of incarceration begin well before a transgender person first interacts with law enforcement. Although there is no singular locus from which all transgender discrimination originates, incongruent identity documents are a basis for a considerable amount of harassment. Congruent documentation, where gender markers match on all identity documents, can be difficult to obtain with only 21% of transgender people who have already transitioned being able to update all of their documents. Documents alone are not enough to explain the level of harassment transgender people face since interaction with law enforcement often begins prior to presenting identification.
The term ‘walking while trans’ is often invoked to illustrate the harassment and bias transgender people face when dealing with law enforcement, echoing a similar statement regarding police interaction with racial minorities. Behavior that would not justify stopping, searching, or arresting a white and/or cis-gendered person is often used to support these actions against transgender people. Transgender people are detained or arrested simply because they are transgender. While the rates of police harassment are similar for all transgender people, those who identify as transwomen or gender-nonconforming face the highest rates of harassment. Analogous to the general population, racial minorities face higher rates of police misconduct than their white counterparts with the highest rates associated with those who identity as black. Taking these facts along with the lived experiences of transgender women of color, ‘walking while trans’ refers to those most likely to be harassed and arrested, which are black transgender women. Although a variety of rationales and infractions are used to stop, detain, and arrest transwomen of color, the term commonly refers to allegations of sex work.
Of critical importance to understanding how transgender women of color are disproportionally targeted for investigation and arrested for allegedly engaging in sex work is an understanding of modern anti-prostitution laws. These laws are local ordinances premised on assumptions about the “association between sex work, the drug trade, and violent crime.” A growing number of these laws go beyond directly criminalizing the exchange of sex for money and encompass a vastly larger array of behaviors considered to demonstrate intent to engage in sex work. Behaviors that are otherwise legal, such as trying to talk to more than one stranger or carrying more than one condom, can now be considered evidence of prostitution or intent to commit prostitution. Due to the unjustified stereotype of transgender women, and, again, particularly transgender women of color, as implicit sex workers because of their gender identity, these laws give police a legal basis on which to rest their bias and harassment.
Phoenix, Arizona is one of the municipalities that has passed such a vague law, Municipal Code § 23-52 which enumerates behaviors that demonstrates that a person “manifests an intent to commit or solicit an act of prostitution.” Included in these behaviors is attempting to stop a car with a bodily gesture more than once. However, the statute does not include any requirement that the person actually engage in prostitution. Anyone who has unsuccessfully tried to hail a taxicab could fall under this provision depending on how police perceive your actions. As already demonstrated, one’s race and gender identity can both negatively affect a police officer’s perception when the person is non-white or transgender. If you are a black transgender women, police are significantly more likely to assume you are engaging in sex work, as evidenced by the arrest and conviction of Monica Jones.
Jones, a current social work student at Arizona State University, was convicted in April 2014 for violation of § 23-52 for receiving a ride home from undercover police officers. Her arrest was part of a police sting working with Project ROSE. The project is an effort by the ASU Social Work department to “save” women working as sex workers. Project ROSE assists the police in detaining women suspected of engaging in sex work and convinces them to enter a diversion program which if successfully completed results in all charges being dropped.However, if women fail to complete the program they are prosecuted, without being able to consult with counsel until after making a decision to join the program. After police arrest someone suspected of “manifesting an intent,” they are taken to the basement of a church where members of the Project ROSE team exchange a place in the program for an accused sex worker’s legal rights. The centerpiece of this program is classroom “reeducation” run by Catholic Charities, requiring several full days of attendance during which food is not provided. In addition to potential constitutional issues with the program, it only has a 28% success rate, leaving the 72% of detainees who cannot complete the religion-based program facing months or years incarcerated.
The night of her arrest was not the first time Jones has interacted with Project ROSE. As a social work student, she had been an open and vocal critic of the program, debating its appropriateness with the founder, Dr. Dominque Roe-Sepowitz. Additionally, Jones was an active member of SWOP-Phoenix, an organization dedicated to advocating for the rights of sex workers. Instead of assuming all sex-workers are helpless victims they fight to reduce “stigma and criminalization” for those in the sex industry by their own consent. The day before her arrest, Jones spoke at a SWOP rally and posted on a website used by sex-workers to warn them about Project ROSE. Whether or not her activism had any impact on her arrest, and many believe it did, it is clear she was targeted for her transgender identity.
Taking a ride from an undercover officer was ultimately the behavior that resulted in Jones’ conviction and she was never accused of offering sex. While Jones’ testimony contradicts that of the officer, both admit that the officer targeted Jones. One may question whether bias or discriminatory intent can be proven, but all they need to do is look at the police report in which the officer uses male pronouns despite Jones’ identification clearly stating she is female. This misuse of pronouns continued at trial, presumably long after the officer should have known that Jones is female. The officer also accused Jones of exposing her breasts, which becomes a confusing accusation in light of the gender pronouns he chose to use. Jones has denied that she exposed her breasts and explained that she was simply wearing a low cut dress. The reality is that transwomen’s bodies are judge differently, what may be a low cut dress on a white cis-gendered woman becomes public exposure when a black transwoman wears the same dress.
Despite the conviction, Jones is still an outspoken advocate for sex workers and transpeople. She has filed an appeal, citing, inter alia, the judge’s impermissible reliance on her punishment- being sent to a male correctional facility if convicted- to detract from her credibility. She links her case to the pervasive and systematic discrimination faced by all who are profiled for their skin color or their gender identity. As the ACLU notes, “The difference between ‘innocent’ and ‘criminal’ behavior often comes down to how a person looks.” Although the law may not be a panacea through which all discrimination faced by transgender people can be eliminate, it should certainly not be allowed to perpetuate that discrimination.
 Jamie Grant et al., Injustice At Every Turn: A Report of the National Transgender Discrimination Survey 163 (2012).
 Id. at 139 (different standards are used for changing gender markers of different documents and few transgender people are able to meet all of them, in particular sex reassignment surgery standards).
 ‘Cis’ is a term used for people whose sex assigned at birth matches their gender identity.
 Id. at 160.
 Johnathan Ned Katz, Gay/Lesbian Almanac: A New Documentary 69-70 (1994).
 Joey L. Mogul, Andrea J. Ritchie & Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States 61 (2011).
 See Elizabeth Nolan Brown, Prostitution Precrime? Monica Jones and ‘Manifesting an Intent’ to Prostitute in America, Reason, April 16, 2014, https://reason.com/archives/2014/04/16/prostitution-thought-crimes-monica-jones (describing the type of “intent to prostitute” laws that have been spreading through local legislatures).
 See, e.g., Human Rights Watch, Sex Workers at Risk: Condoms as Evidence of Prostitution in Four U.S. Cities (2012), available athttps://www.hrw.org/sites/default/files/reports/us0712ForUpload_1.pdf.
 See Phoenix, Arizona Municipal Code § 23-52 (2014).
 Nolan Brown, supra note 9.
 Molly Crabapple, Project ROSE is Arresting Sex Workers in Arizona to Save Their Souls, Vice, Feb. 26, 2014, https://www.vice.com/read/in-arizona-project-rose-is-arresting-sex-workers-to-save-them.
 Mike Ludwig, Sex Work Wars: Project Rose, Monica Jones, and the Fight for Human Rights, Truth-Out, March 13, 2014, https://truth-out.org/news/item/22422-sex-work-wars-project-rose-monica-jones-and-the-fight-for-human-rights.
 Crabapple, supra note 13.
 Stephanie Wahab and Meg Panichelli, Ethical and Human Rights Issues in Covercive Interventions With Sex Workers, 28(4) J. of Women and Social Work 344, 346 (2013).
 Crabapple, supra note 12.
 Nolan Brown, supra note 9.
 Gretchen Rachel Blickensderfer, Monica Jones Found Guilty Under Prostitution Ordinance, Windy City Times, April 11, 2014, https://www.windycitymediagroup.com/lgbt/Monica-Jones-found-guilty-under-prostitution-ordinance/47015.html.
 Brief for Appellant at 1, Arizona v. Jones, Municipal Court No. 201 39021636 (Ariz. appeal filed Aug. 5, 2014), available athttps://www.acluaz.org/sites/default/files/documents/Appellant_s%20Memorandum%20(2)_0.pdf.
 Chase Strangio, Arrested for Walking While Trans: An Interview with Monica Jones (April 2, 2014), available athttps://www.aclu.org/blog/lgbt-rights-criminal-law-reform-hiv-aids-reproductive-freedom-womens-rights/arrested-walking.