Free expression is being criminalized in Phoenix

By Steve Kilar, August 2019 Issue.

A recent episode of the podcast Making Gay History included archival interviews with LGBTQ civil rights icons Sylvia Rivera and Marsha P. Johnson about life in New York City before the Stonewall rebellion. The excellent podcast released a mini-season in June to honor the 50th anniversary of the uprising.

Both Rivera and Johnson, who together organized the post-Stonewall group Street Transvestite Action Revolutionaries, spoke about how police routinely harassed queer people in the pre-Stonewall era — and the law encouraged them to do it.

“When I was growing up, if you walked down 42nd Street and even looked like a faggot, you were going to jail,” Rivera said in the interview from 1989. “Oh, I went to jail a lot of times.”

Johnson shared similar experiences when interviewed in 1989 by historian Eric Marcus, the host of Making Gay History and author of a book by the same name.

“Yeah, they’d say, ‘All you drag queens are under arrest,’” Johnson recalled. “You know, we were just wearing a little bit of makeup down 42nd Street.”

Marcus, giving context to their comments, explained the law at the time.

“Back then, if you were wearing fewer than three items of clothing that aligned with your legally assigned gender, you could be arrested,” Marcus said. “That gave police broad authority to harass and humiliate people who didn’t conform to the gender norms of the time.”

Over the decades, many laws like this, which were certainly not unique to New York, stopped being enforced, were struck down as unconstitutional violations of freedom of expression, or were repealed. But in some places, including Phoenix, laws remain on the books that give police an excuse to target queer people because of how they look.

Listening to Rivera and Johnson describe the police abuse they endured reminded me of a case the ACLU worked on several years ago challenging a Phoenix law intended to curtail sex work. In the case, Monica Jones, a trans woman of color, was accused of “manifesting” prostitution.

What is “manifesting” prostitution, you ask?

According to the Phoenix City Code section covering “Offenses Involving Morals,” manifesting “an intent to commit or solicit an act of prostitution” includes things like trying to “engage passersby in conversation,” hailing or waving at a vehicle, and trying to determine through words or conduct whether someone is a police officer.

That definition clearly limits constitutionally protected free expression. It also creates an opportunity for police to engage in profiling based on gender identity.

It is not likely that an officer would confront a white, cisgender man trying to speak to people on the sidewalk. But a transgender woman, especially a transgender woman of color, waving at cars? You can safely bet she’s going to be approached.

The “vagueness of the law allows officers unfettered discretion to profile transgender women and presume that they are engaging in criminal conduct when conducting constitutionally protected activities such as walking down the street with friends, going to a grocery store in their neighborhood, flagging a cab, or greeting friends,” the ACLU argued in a brief supporting Jones.

At Jones’ trial, the officer who arrested her testified that he initially suspected her of “manifesting” an intent to engage in sex work because she was wearing a “black, form-fitting dress” in an area he said was known for prostitution, which happened to be near Jones’ home, according to court records.

The charge against Jones was eventually dropped but Phoenix’s manifesting prostitution law is still being used against a lot of people. A review of Maricopa County booking information from 15 recent months (all of 2017 and the first three months of 2018) shows that 41 women and two men were arrested for “manifesting” prostitution.

More than half of these people, 24 women, were black. Just about 7% of Phoenix’s population is black, according to the Census Bureau. One person was identified in the data as Hispanic and the rest, 18 people, were identified as white.

“The difference between ‘innocent’ and ‘criminal’ behavior often comes down to how a person looks,” Chase Strangio, an ACLU LGBT & HIV Project staff attorney, wrote in a blog in April 2014, when Jones’ case was ongoing. “Transgender women of color are often profiled by police as engaging in sex work for simply being outside and going about their daily routines.”

It’s time for Phoenix to repeal its outdated “manifesting” law. Like the New York laws that decades ago allowed police to abuse Rivera, Johnson and other queer people, Phoenix’s law restricts free expression and encourages police profiling of individuals who do not conform to gender norms.

Trans Queer Pueblo, an organization that fights for the rights of queer migrants of color, is working to get Phoenix’s manifestation law repealed. They recognize the threat it poses to members of their community. You can learn more about Trans Queer Pueblo’s repeal campaign at www.facebook.com/transqueerpueblo/

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