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A Historic Breakthrough for Sex Workers’ Rights

New York could become the first state to decriminalize prostitution. TNR got an exclusive first look at the new bill.

Erik McGregor/Pacific Press/LightRocket/Getty

Back in February, advocates for sex worker rights in New York announced their intention to fully decriminalize prostitution in the state. But no one really suspected then that within two weeks, Democratic candidates for president would be pledging support for competing legislative visions of what they called (at times, incorrectly) sex work decriminalization. Quite suddenly, the enlightened thing to do—or at least to say you were doing—was to support these measures, a development that came as a shock even to many sex workers who had long campaigned for decriminalization. On Monday, that same group of advocates, Decrim NY, will see a bill they have helped draft introduced in the state legislature that promises to give practical shape to the goals sex workers have pursued for several decades. The bill is groundbreaking for the United States: If passed, it would make New York the first state to fully decriminalize sex work.

The New Republic has had a first look at the bill. The measure removes criminal penalties associated with adults selling and buying sex, and repeals parts of the law that have criminalized sex workers’ places of business along with “loitering for prostitution” in public. Their aim is grounded not just in criminal justice reform, but in more fundamental appeals to economic justice. “This is not just about decriminalizing workers or the absence of criminal codes. It’s about making sure people who work in the sex trades have access to making a living in the sex industry in a way that is not a crime,” said Audacia Ray, a member of the Decrim NY steering committee, a director at the New York City Anti-Violence Project, and a former sex worker.

The bill would also strike prohibitions on “promoting” prostitution, which can be used to criminalize any group of sex workers who work together, whether that is in the same workplace or remotely by helping each other advertise or screen potential clients. Compelling prostitution and promotion of prostitution involving cases of force, intimidation, or minors would remain a crime. “The things that actually protect people—it keeps those on the books,” said Jared Trujillo, a member of Decrim NY’s steering committee, the president of Legal Aid Society’s labor union, and a former sex worker. “As far as trafficking, you still can’t traffic people. As far as being able to purchase sex from someone who’s underage? All those protections [for minors] are still on the books.” This same bill also contains a critical provision permitting people with prior records for offenses decriminalized by the bill to have those convictions vacated. All together, for adults engaged in the sex trade, Trujillo said, “What it does decriminalize is really just existing.”

The New York bill is the most comprehensive sex work decriminalization measure in the country, though it is not alone. In Washington, D.C., a revised decriminalization bill was introduced last week with the backing of four district council members. These bills are now landing in the early phase of the 2020 campaign—the first in which multiple major candidates are, when asked, offering their proposals on changing laws against sex work. “Sex workers, not politicians, should lead the way in crafting sex work policy,” former Senator Mike Gravel tweeted. In a Data for Progress and Decrim NY poll released in May, Democratic voters said they support fully decriminalizing sex work by a 3-to-1 margin.

So now, for the first time in the 40-year history of the American sex workers’ rights movement, a state legislature may finally heed those demands.

From even a quick scan of the 20-plus page draft bill, it’s clear that decriminalizing sex work means dealing with more than just laws against prostitution per se. “This actually speaks to exactly how pervasive the criminalization of the sex industry is,” said State Senator Julia Salazar, “that it touches so many parts of the law the average person doesn’t think about when they think about prostitution being illegal.” Salazar, a Democrat, is the Senate sponsor introducing the bill, alongside Assembly Member Richard Gottfried (who put in critical work drafting and researching, according to Decrim NY). They are joined by Senator Jessica Ramos and Assembly Members Catalina Cruz, Ron Kim, Yuh-Line Niou, and Dan Quart.

In addition to removing penalties for selling and buying sexual services—just one part of full decriminalization—the Decrim NY bill also strikes prohibitions on keeping a “house or place of assignation for lewd persons.” That ban gave landlords free rein to evict sex workers from their places of work or residence (or both), or in other cases, to decline to rent to sex workers at all.

“If you were to focus only on decriminalizing the sale of sex and no longer prosecuting or charging sex workers,” Salazar explained, “but you continued to impose fines or penalties on landlords in places where sex is exchanged, or on the johns—first of all, it eliminates potentially a safe space for the sex worker to work, and puts them in a further precarious situation economically or physically, not having a safe place to be. And potentially, it can lead to them losing housing, and landlords retaliating against them.” Though these may be understood as “unintended consequences” of anti–sex work laws, she said, “they are really harmful” and must be addressed.

In the context of global criminal justice reform, to roll back these discriminatory laws in order to protect the rights of sex workers is not a new approach. New Zealand decriminalized sex work in 2003, and has since become the model for full decriminalization, now backed by many human rights groups and NGOs such as Amnesty International and the World Health Organization. Like New Zealand’s decriminalization effort, New York’s is led by sex workers themselves. But it is adapted for the American system, which remains one of the most punitive anti–sex work regimes in the world.

In New York City, around 1500 people were arrested on prostitution-related charges in 2018. These arrests target mostly sex workers of color, transgender sex workers, and immigrant sex workers. Police don’t only arrest people for the work they do, or think they are doing, but for carrying on with their daily lives, like walking to the subway or wearing leggings—both of which the NYPD have considered violations of a law against “loitering for the purposes of prostitution.”

Ending such arrests, said Trujillo, would mark an immediate improvement for sex workers. “If you look in Manhattan, and parts of East Harlem, where they’ve largely stopped arresting people for loitering, their lives have gotten better, and there’s been fewer instances of police interactions.” Defunding vice policing is also an opportunity to invest in services that improve sex workers’ lives, he said. It can demonstrate to lawmakers and to prosecutors that services for sex workers need not be tied to arrests.

Some in law enforcement defend arrests as an intervention meant to help sex workers. But the reality, Trujillo said, is that an arrest is traumatic in and of itself. As a criminal defense attorney, he recalled what the experience was like for his clients: “You meet them for the first time when they are in a cage, and you are asking them to tell you—in the five minutes before you arraign someone—you are asking them to tell you about something that’s deeply personal to a lot of folks. And then you have to go into a courtroom in front of a judge and a courtroom full of people hears their sins or misdeeds. And it’s dehumanizing, it’s humiliating for a lot of people. It’s really inhumane.”

While it might seem minor in comparison, striking “laughably dated” language like “lewd persons” from the criminal code, said Ray, is another way of rolling back stigma against sex workers, attitudes that lead people to accept abusive policing. Take an archaic New York statute permitting police to seize from alleged bawdy houses “furniture, fixtures, musical instruments, and movable property used in conducting or maintaining such nuisance”—if that sounds like a law drawn up on player piano paper, it very well could have been. These are laws that regard not just places, but people, as a nuisance.

Not all of New York’s anti–sex work laws are so antiquarian. The loitering-for-prostitution law only went into effect in 1977. A separate, stand-alone bill to repeal it was introduced in the state legislature in February, and has since passed out of the codes committee in the Assembly. Last week, the NYPD announced they would amend their patrol guide regarding enforcement of the loitering law, instructing officers to not arrest people based on gender identity, clothing, location, or past arrests—part of a settlement between the police and plaintiffs in a 2016 lawsuit charging that the loitering law violated their constitutional rights. Momentum against the loitering law could potentially help push the comprehensive decriminalization bill onto the agenda.

Advocates don’t expect a vote on the measure this session—but they note that the rapid movement toward full decriminalization is unprecedented. What’s behind this sudden push? “I believe it was necessary for these two new women elected officials to make this kind of statement,” said Cecilia Gentili, a steering committee member of Decrim NY and a former sex worker. Gentilli was referring to senators Ramos and Salazar, who arrived in the state legislature in Albany as part of a wave of left-leaning lawmakers who won election last November. “That new blood infuses the Senate,” she added. “A Latinx person like Jessica giving this bill shape is what makes it unprecedented.”

Ramos is also among the first state lawmakers to refer consistently to sex workers as her neighbors. “She knows us,” said Gentili. “She’s been walking home from the train and walks by a sex worker, specifically a trans sex worker.” The Queens neighborhood of Jackson Heights, which Ramos represents, has long been the center of anti–sex work policing that disproportionately targets immigrant trans women. But immigrant trans sex workers remain a visible and organized part of the community.

Jackson Heights is represented in Congress by Alexandria Ocasio-Cortez, who also opposes the criminalization of sex work. Like Ramos, Ocasio-Cortez has met with sex workers in Jackson Heights to address their concerns. That may seem like an obvious initiative for any representative, but it’s an important new approach, according to Democratic political strategist Alexis Grenell. Rather than viewing sex workers as victims to be spoken for, or as symbols of broader social decline, Grenell said, these lawmakers simply treat sex workers “as constituents who are entitled to representation and attention.” Last year, Salazar campaigned on decriminalizing sex work, and sex workers in Brooklyn and Queens turned out for her in significant numbers, throwing pizza parties in packed bars, going door-to-door to tell voters why Salazar had their support. Now, along with Ramos and others, she’s delivering on those promises.

“Decriminalization has not only been centered as a meaningful, thoughtful idea, but it has been centered by young women of color in power,” Grenell observed, “who are absolutely the base of the Democratic Party. And these are people you want to listen to and not degrade.” She considers these new women lawmakers emblematic of the broader leftward direction of the party as well as a significant break with the past prohibition-driven approach to sex work.

Until recently, Democratic women in politics—mostly—have seen engagement in sex work as something that victimized women and disqualified men from feminist support. One poster boy for this earlier consensus was, of course, former New York Governor Eliot Spitzer—who enjoyed the backing of groups like the National Organization for Women’s New York City chapter, Grenell pointed out, before he was outed as an escort service client in 2007.

But the rules of sex work politics have been rapidly rewritten in just a few election cycles, said Grenell. “It’s largely because of the unabashed activism and support of the new female members of the New York Senate, who are young, completely fluent in the issue, and who do not enact the kind of verbal violence that we see routinely on the other side, which for decades has successfully cowed politicians into never touching the issue.”

It’s those groups with anti–sex work agendas, notably NOW-NYC and service providers like Sanctuary for Families, that Decrim NY’s Gentili believes will present the fiercest opposition to their bill: “These organizations that do have incredible amounts of money, incredible amounts of power and lobbying leverage that we don’t have, that are terribly opposed to people like me being able to make their living out of sex work.” In March, Sanctuary, NOW-NYC, and the international Coalition Against Trafficking in Women staged a small rally at New York City Hall. The protest attracted a smattering of New York groups while also drawing more international women’s organizations, including one from the U.K. that displayed a transphobic banner behind the rally’s speakers, which included Congresswoman Carolyn Maloney.

Along with those groups, Maloney did later denounce the anti-trans banner. Still, the day was mostly devoted to airing ominous warnings that if Decrim NY were to prevail, “pimps” and “traffickers” would open brothels in the city—one speaker suggested New York’s tony new Hudson Yards development. Others sounded the familiar refrain from the days of so-called white slavery that the women and girls of the city would become mere fuel for male customers’ lust and “demand” for paid sex. Though these groups said they supported the idea of not arresting sex workers, they would not support Decrim NY’s bill.

“These people advocate for more police power—they want them to have absolute power over people’s bodies,” Gentili reflected. “I can’t understand how it is feminists who are advocating for policing.”

One morning this past May in an alley off Flushing’s 40th Road—a micro-neighborhood in one dense block in Queens, filled with Chinese restaurants, massage establishments, and other small businesses—two New York legislators addressed their constituents. Assembly members Yuh-Line Niou and Ron Kim stood under a window where a 38-year-old woman named Yang Song fell four stories to her death in November 2017, during a police raid on the massage business where she worked. When Niou and Kim spoke, they were clear: They considered Yang Song someone they had a duty to represent.

“Yang Song’s story is, sadly, not uncommon,” said Niou. One year before her death, Yang Song had reported to police that a man presented himself at the massage business as an undercover police officer and sexually assaulted her at gunpoint. The man had even flashed a badge. But officers did not find him and the investigation was closed. Then, several months later, NYPD officers arrested Yang and charged her with prostitution. At the time of her death, the criminal case against her was still open.

“This is not a crack in the justice system that she happened to fall through,” Niou continued. “This is a systemic silencing of voices for the convenience of those that prey on them and for others who are uncomfortable to acknowledge them.”

After the NYPD was cleared of wrongdoing in Yang Song’s death by the Queens district attorney—who took the opportunity to opine that Yang’s job was “degrading and humiliating”—immigrant massage workers launched their own group, Red Canary Song. They promptly took aim at the laws that put Yang’s life at risk—and in February, they joined Decrim NY in their demand for full decriminalization.

So on that morning in May, assembly members Niou and Kim had taken to that same Flushing sidewalk to announce their support for a new Queens district attorney: candidate Tiffany Cabán. A public defender who describes her approach as that of a “decarceral prosecutor,” she has since picked up an endorsement from Ocasio-Cortez, and has set up her headquarters in Senator Ramos’s old office. Like these women, she is also regarded as an insurgent candidate, and she supports decriminalizing sex work.

When Cabán spoke, she acknowledged sex workers from Red Canary Song and Decrim NY. “It is because of the advocacy of organizations like yours that this has become the issue that it is,” she said, with some pride. “Full decriminalization and nothing less is the best way to protect the safety and human rights of our sex workers.”

Even should the state pass full decriminalization, said Ray of Decrim NY, their bill “is the start of the next phase of things, not an endpoint.” The kind of questions she wants to start asking now are, What does sex work in New York look like after decriminalization? What does it look like for sex workers to have rights in the workplace? For the first time, she said, they have been able to go beyond just asking the people who represent them, Listen to sex workers. “I’ve spent 15 years insisting on sex workers being heard at all.” Now, she said, they actually get a response: “What do you want us to do about it? How can we help you?”