Policing Gender, Arresting Sex

While marriage equality and criminal justice reform proposals pepper ballots across the country, a new investigative piece in The Chicago Reporter illustrates what community groups and academics have long observed, that anti-prostitution laws cause tremendous harm to people engaged in the sex trade, especially those who are LGBT. The article notes that transgender women are particularly likely to be booked on felony prostitution charges on a second or subsequent prostitution offense under legislation that advocates argued would increase penalties to clients, not sex workers. What's more, in what seems to be a flagrant violation of Chicago anti-discrimination law, police officers arrest transgender women (overwhelmingly women of color) for prostitution, classify them as male and, in a disturbing twist of logic, post their mugshots online as part of an effort to "shame" men for attempting to buy sex.

The practice of publishing mugshots of those arrested for seeking commercial sex is not unique to Chicago, but it is one of the few jurisdictions where the practice has been studied. Data crunching by the Social Science Research Center at DePaul University revealed that at least 10 percent of mugshots posted online by the Chicago Police Department were likely transgender women, 92 percent of whom were African-American. When law enforcement is tasked with identifying buyers and sellers, police become the arbiters of gender, nullifying the work being done to allow people to self-determine their gender identity and expression. LGBT advocacy groups should be outraged by this systematic mistreatment of transgender communities.

Indeed, efforts to stop police profiling of transgender women of color -- a phenomenon referred to as "walking while transgender" by activists from San Francisco to New Orleans to NYC -- have resulted in multiple jurisdictions implementing policies that explicitly address such practices. Take Chicago's own recent police order that mandates that officers not "consider a person's gender identification as reasonable suspicion or prima facie evidence that the individual is or has engaged in a crime, including prostitution...." But without a mechanism for community oversight, such policies have had less impact than expected. In 2007 Washington, D.C., enacted a similar policy, yet research in 2008 and 2011 found that transgender women of color in the city still reported frequent police profiling and harassment.

Rather than address abuses committed by law enforcement in the course of policing sex work, a new wave of anti-prostitution activists seeks to eliminate commercial sex altogether. Posting the mugshots of clients online is promoted as a way to "end demand" for commercial sex in order to decrease prostitution, but there is little evidence that the practice achieves its stated goal, but it clearly produces rights violations.

In fact, most policies promoted to "end demand" for commercial sex have no basis in empirical research. Instead, they harm those whom they are supposed to help. The Chicago Reporter article shows how an Illinois law passed amidst a flurry of rhetoric about increasing penalties on those purchasing commercial sex has been used to charge hundreds of sex workers with felonies. Instead of pushing for new felonies for "johns", activists should have tried to strike the law that was forcing sex workers into cycles of arrest and incarceration. It is disappointing that while people around the country increasingly recognize the failings of the "lock 'em up and throw away the key" response to social issues, advocates for "saving women from prostitution" want to arrest more people and keep them incarcerated longer, with adverse consequences for those they claim to want to protect.

For most people engaged in exchanging sex for things they need, including those who are transgender or LGB, giving police more power is not helpful. Community-based research by the Young Women's Empowerment Project in Chicago found that girls and young women involved in sex trade named law enforcement as the number-one source of violence and abuse. The Task Force's and National Center for Transgender Equality's national survey of transgender people found that almost a third had experienced harassment and disrespect from police, with exceptionally higher rates among transgender people of color. While the "war on drugs" is the main driver of the 800-percent increase in the number of women, particularly African-Americans and Latinas, behind bars, prostitution-related offenses are among the top reasons for women's incarceration. Arrest on a prostitution-related charge is also grounds for deportation not only for undocumented immigrants but for those with visas or permanent resident status.

Increasing criminal penalties will not solve complex social issues. Individuals engage in commercial sex for many different reasons, but most often to make ends meet -- to pay the rent, support a family or afford tuition. Arresting those involved -- provider or client -- doesn't address any of those things. It just makes it harder for people to meet their needs while pushing the sex sector further underground. LGBT communities must be wary of groups pushing an agenda to "help" LGBT people in commercial sex by increasing criminalization, particularly in light of the long history of police profiling and abuse of our communities. We must keep a focus on the human rights of those who trade sex, not engage in moralistic crusades to eradicate prostitution.