On October 8, the United States Supreme Court is considering whether firing a person because of their transgender identity, as well as LGBTQ sexual orientation, is sex discrimination. “Trans people have every right to the same protections as everyone else,” said plaintiff Aimee Stephens, a transgender woman who was fired from her position as the director of a Detroit funeral home after she came out.
But if the justices rule against her, LGBTQ people would then be living in a country where it’s “lawful under federal law to fire LGBTQ people for their gender identity or sexual orientation,” according to a press release by the American Civil Liberties Union (ACLU), which is representing Stephens.
All eyes, across national news and social media, seem to be on this case—and rightfully so. As the ACLU tweeted, “Today will go down as one of the most important days in LGBTQ legal history.” But we can’t forget that employment discrimination battles assume that trans people can even get a waged job in the first place.
Instead, so many trans folks have worked in the underground drug and sex economies—one in five, or 20 percent, to be exact—largely because of astonishing unemployment rates (15 percent in 2015) that are far higher than the national average (5 percent in 2015), according to the US National Transgender Survey.
Even as a white-passing, college-educated trans woman, I started doing sex work because I was nervous that no one would hire me. I was 22, about to graduate from an elite college, and had shmoozed my way into the American bourgeoisie.
But even then, I’d experienced discrimination while job-hunting. One instance left a mark on my self-worth and self-perceived ability to get a job. Without the income guaranteed by a campus job, I applied for a minimum-wage position at a major bookstore chain. The hiring manager responded quickly to my application, expressing excitement about my academic credentials and (unpaid) intern experience at a publishing house. When I, a trans woman over six feet with a deep voice, arrived for my interview, I saw dread spill across her face. Clearly, I was not who she expected. The conversation lasted mere minutes, and she fought to avoid eye contact. I never heard from her after that.
I’m far from the only one who’s faced employment barriers and instead looked to sex work for money. “I’m going to state why most transgender girls prostitute. It’s not because they really want to, it was just a means of support,” said a San Francisco trans woman of color in an interview for an early-2000s study on the community’s attitudes towards sex work. “It was easier going out than dealing with society, it was easier than going out looking for a job and getting fired, and I was my own boss.”
While doing sex work—I’ve stopped, for the most part, after getting the staff writer position at Filter—I never had any encounters with law enforcement. But sex workers, especially those who are Black and Brown and doing street-level work, seem to be most vulnerable to policing. Following the enactment of the supposedly anti-sex trafficking legislation, SESTA/FOSTA, it seems to be only getting worse in many places.
Many major cities have seen crackdowns on “prostitution loitering,” which is otherwise known as “walking while trans.” In the months following the spring 2018 shutdowns of Craigslist Personals and Backpage, two popular sites used to post advertisements, San Francisco reportedly saw an increase in street-level sex work. In response, the city’s police leadership planned to task cadets—or trainees yet to be sworn in as officers—with patrolling the streets of the Mission District, a neighborhood known to be frequented by sex workers, beginning in August 2018. In the following month of September, 68 prostitution loitering arrests were made—a number that hadn’t been seen in the city in a single month in over seven years, according to city arrest data I reviewed.
In New York City, “loitering for prostitution” arrests boomed between 2017 and 2018, with 425 percent and 125 percent leaps for “White Hispanic” and “Black Hispanic” New Yorkers, according to city arrest data I reviewed. In September 2018, 33 “prostitution loitering” arrests were made—the most in a little over three years, when 42 arrests occurred in August 2015. Black and Latina women (12 and 7, respectively) were most targeted in these arrests. Jackson Heights, is a key spot where trans women of color work, and are often profiled, was particularly impacted.
Overall, it’s unclear how many of these arrests involved trans women. But we do know that the policing practice behind “loitering for prostitution” arrests implicitly requires profiling people as sex workers.
The New York Police Department was required to change its policies after it settled a lawsuit that alleged it was illegally profiling women of color and arresting them on prostitution loitering charges. The changes include amending “the Patrol Guide to prohibit officers from relying only on gender, gender identity, clothing and location to enforce the loitering law,” according to the New York Daily News.
Law enforcement profiling of transgender women of color happens nationwide. One-third of Black trans women respondents in the 2015 Transgender Survey reported that an officer assumed they were a sex worker. Of the respondents who reportedly interacted with police while doing sex work, nearly one-third were arrested.
In the face of all this, I want “a world that fully acknowledges sex work as work,” as Red of the Support Ho(s)e Collective has said—and if others also accept that, and support the elimination of employment discrimination against transgender people, we need to end sex work prohibition.
“Full decriminalization best protects the rights and safety of people who trade sex,” said Jessica Raven, executive director of the Audre Lorde Project and a steering committee member of Decrim NY, the organization working to decriminalize sex work in New York state. “Some argue for the Nordic model, where only buyers and third parties face criminalization. In reality, these laws target loved ones, family, landlords, drivers and other people providing care and services to sex workers, which isolates and stigmatizes people who trade sex.”
It seems that supporters of the LGBTQ justice movement are in favor of stopping employers from taking punitive action against workers because they identify as transgender. So when will we apply that same logic to the state that disproportionately targets those of us working in the economy’s margins?
Photograph of protest signs outside the Supreme Court on October 8, 2019; by @activistwonk via Twitter