“Tight black leggings”
“Mini dress, bra strap showing”
“Tight jeans and tight tank showing cleavage”
“Pink + blue sweater hoodie”
These may seem like everyday outfits you can see on any street or in any mall in America, but these mundane descriptors were actually cited by New York City Police Department officers as evidence against suspects arrested in 2015 and 2016 under suspicion of “loitering for the purpose of engaging in prostitution.” Other incriminating evidence included walking in areas known for heavy solicitation, carrying condoms and being found with “large” sums of cash.
Currently, it is illegal to “loiter for the purpose of prostitution” in eight states, and a number of cities ― New York, Phoenix, Dallas and Portland, to name a few ― have laws prohibiting loitering and “manifesting an intent to commit prostitution.” The charge of loitering for the purpose of prostitution does not require that anyone actually witness a verbal agreement of sex in exchange for money; in fact, some women have been arrested after declining solicitation from officers. Charges are up to the discretion of police officers and rely on them spotting people who just so happen to arouse their suspicion.
Arbitrary as this may seem, it’s emblematic of many sex work criminalization laws and anti-prostitution efforts: irresponsibly broad, ineffective and reactionary. They cast nets so wide that many of us can become entangled and incriminated, including those of us who do not engage in sex work ― and who may not be aware of just how much proximity we share with its stigma.
With the recent passing of the controversial Allow States and Victims to Fight Online Sex Trafficking Act, or FOSTA, it’s imperative that we consider how that stigma affects both physical and online spaces.
“These laws cast nets so wide that many of us can become entangled and incriminated, including those of us who do not engage in sex work.”
Black and Latino cis and transgender women in low-income neighborhoods (and neighborhoods undergoing gentrification) in America experience the bulk of sex worker profiling. A 2014 report from the Red Umbrella Project, a peer-led Brooklyn organization that advocates for sex workers, found that black women made up 94 percent of all charges for loitering for the purpose of prostitution in New York’s Human Trafficking Intervention Courts of Brooklyn and Queens.
Another recent study of police records in North Carolina found that there are substantial racial disparities in prostitution arrests, with black women arrested at two to three times their rate in the population as a whole. Similarly, a 2014 report from Columbia University concluded that queer youth and trans women of color “are endemically profiled as being engaged in sex work, public lewdness, or other sexual offenses.” The reality of “walking while trans” often involves having to navigate occupied communities where broken windows policing leads to being profiled and consequently thrown into the criminal system.
This kind of profiling largely affects poor and working-class cis and trans women of color, but professional, middle-class black women aren’t necessarily immune. In 2014, three black women (one lawyer and two teachers) were wrongfully accused of solicitation while sitting at a bar lobby in New York City’s Standard Hotel after a man had approached them and offered to buy them drinks. A similar incident happened in 2015 to two black businesswomen based in Dubai who accused the Mövenpick Hotel Jumeirah Beach staff of racially profiling them as sex workers after staff refused them service and asked them to leave the hotel’s bistro.
The profiling both cops and other citizens display can be largely attributed to pervasive stereotypes of black cis and trans women as hypersexual and deviant, thus more likely to engage in sex work. This harmful impression also extends to young black girls. In 2008, 12-year-old Dymond Milburn was beaten and injured by cops in Galveston, Texas, who attempted to arrest her on suspicion of prostitution while she was standing in her front yard. She was later handcuffed for resisting arrest at her middle school.
A recent study from Rights4Girls and the Georgetown Juvenile Justice Initiative found an 87 percent increase in arrests of young black girls in Washington, D.C., from 2007 to 201 for non-violent offenses such as truancy, loitering and “commercialized sex acts.”
It may be instinctive to singularly rail against the perception that black and Latino cis and trans women are likely sex workers, and yes, we should push back against that hypersexualization. However, it’s also important to work toward the destigmatization and decriminalization of sex work and to call for an end to the policing of femme sexual expression.
Criminalization of sex work harms both sex workers and members of communities whose existence is associated with sexual deviance and criminality. It’s well documented that an increase in police interaction results in a higher likelihood of abuse at the hands of law enforcement for sex workers and trans and cisgender women of color.
It’s also a reality that many people who experience shelter instability, as well as job and housing discrimination, are more likely to turn to sex work as a means of survival. Further, some people aren’t cornered into sex work but choose it, as we’d choose any other profession. We cannot continue to stigmatize and criminalize these means of survival while simultaneously failing to provide alternative resources and to address discriminatory practices that deny opportunities to marginalized people.
“Police interaction results in a higher likelihood of abuse at the hands of law enforcement for sex workers and trans and cisgender women of color.”
The recent passage of FOSTA ― a law that aims to protect trafficking victims by targeting and prosecuting websites (like Backpage) that are “related” to prostitution or knowingly aide in sex trafficking ― has stirred another national discussion about sex work criminalization. It has garnered bipartisan approval and received a slew of endorsements from celebrities, anti-porn moralists and high-profile anti-sex-trafficking lobbying groups like World Without Exploitation.
The most vocal of critics and the people most affected by it ― sex workers ― seem to be excluded from the conversations on the Hill. Many sex workers argue that the bill conflates consensual sex work with sex trafficking and eliminates the online spaces that allow them to safely screen customers while avoiding pimps or having to depend on street solicitation. These objections are also echoed by smaller anti-trafficking advocate groups who fear the bill’s failure to distinguish sex trafficking victims from sex workers will eliminate income for sex workers and hamper pending trafficking investigations. The latter concern was shared by the Department of Justice, which asserted the bill will actually make it more difficult to prosecute sex traffickers.
FOSTA’s warm reception speaks to a larger ethos in our attitude toward sex workers. Society at large only knows how to operate as saviors, judges or punishers. Rather than do effective things, we ignore commentary from actual sex workers so we can be seen as doing something. Even with more well-meaning intentions to thwart sex trafficking, we often lack substantive data that supports our purported scope of the problem. Sociologist Ron Weitzer, who studies human and sex trafficking, contends that most of the frequently cited studies that claim to report large-scale trafficking are unsubstantiated and thinly sourced.
What is clear, however, is that with FOSTA taking effect, some sex workers, left without online tools to screen potential clients and advertise, will likely turn to the streets. It’s not hard to fathom law enforcement becoming more aggressive in anticipation of a possible increase in street solicitation ― and as the nature of policing goes, it’s no mystery who will suffer from the brunt of the suspicion.
We’d be remiss to keep relegating the criminalization and stigma of sex work as “fringe” issues that only affect victims of trafficking, “bad women” or those who make “poor choices.” It’s clear that it’s another oppressive form of policing that targets the most vulnerable and derided among us.
Danielle Butler is a Chicagoland-based writer who focuses on the intersection of culture, gender, race and politics.