How D.C. Finally Stopped Punishing Sex Workers for Carrying Condoms

Police in the nation's capital have an ugly history with the transgender and sex worker communities, but there are signs that's changing. 

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Daniel Lobo/Flickr

In some District of Columbia neighborhoods, the Metropolitan police pass out business cards decorated with a rainbow-hued row of condoms. "Individuals are allowed to carry as many condoms as they want," the text reads. "There is no 'three condom rule.'" 

"People can't believe it," says Darby Hickey, a sex worker rights and trans rights activist in D.C., who is currently working for a member of the D.C. Council. "They take photos of the cards," she tells me. "And they're like, 'you can't believe what I just got from the police, check this out' and they text it or they tweet it – trans workers, sex workers, people who get profiled by the police."

The cards have been on the streets for about a year now. Before that, sex workers and advocates had spent nearly a decade documenting incidents of police harassment in Washington, D.C. Law enforcement officers there were accused of profiling women of color, including transgender women, as sex workers, and they'd search them, using any condoms found as "evidence" that the women intended to sell sex. Amnesty International and the Alliance for a Safe and Diverse DC documented these patterns of police profiling meant to target people in the sex trade in the name of "cracking down" on prostitution. 

In 2012, when Human Rights Watch published a report on U.S. police departments using condoms as evidence of prostitution, D.C. was one of the cities singled out. They found that police often were not arresting people profiled as sex workers, but would stop and search them for condoms, and then order them to "move along" or face arrest. Sex workers they interviewed referenced a "three condom rule," what they believed to be the limit based on their interactions with police. Nila R. told Human Rights Watch, "The cop told me I could have three condoms and threw the others out, I had ten altogether. Also, an open condom is a charge. I’ve been locked up for it, the cops told me they were locking me up for an open condom."

When the Human Rights Watch report was first released, MPD Chief Cathy Lanier defended the practice to Washington City Paper, stating, "I think we can still give a strong message about practicing safe sex without encouraging something that’s illegal." But several months later, Hickey told me, "after a couple meetings with [Lanier] and with the Deputy Mayor for Public Safety, all of a sudden they changed their tune" and became receptive to advocate concerns. 

This is where the cards came in. Advocates told the police that part of the problem was they had contributed to the perception that carrying a certain number of condoms was against the law, says Hickey. "We told them that we want you as a partner in public health – that part of public health is public safety – so why don't you print these cards? And they did." In March 2013, their advocacy coalition welcomed MPD's clarification of their condom policy: that there was none. 

When I arrived in D.C. earlier this spring, another sex work study was enjoying some national media attention: the Urban Institute had just published research which they said revealed the size of the "underground commercial sex industry" in the United States. To come to this conclusion, they surveyed 36 sex workers, and then about twice as many incarcerated men described as "pimps." Funded by the National Institute for Justice (in turn a project of the Department of Justice), not shockingly, the study recommended increased policing of the sex industry.

"I can't believe we spent $500,000 to learn that 'pimps' make more than prostitutes," says Cyndee Clay, executive director of HIPS, a community-based organization serving sex workers in D.C. "The fact that there were no community-based organizations talked to at all in this report — it's not a good methodology. They go into all this salacious detail about money, but they only looked at a certain part of the industry — at people who were potentially trafficked — but then they conflate that with sex work. And they didn't talk to any independents." The small sample size, says Clay, would represent "about a third — if that — of HIPS clients." Their experience isn't found in what was hyped as a "landmark" study.

HIPS recently joined a group of seven organizations working to combat violence against LGBT people, including sex workers, in D.C. Earlier this year, the Metropolitan Police Department released its Hate Crimes Assessment Task Force report, which highlighted the poor relationship the MPD has with D.C.'s trans community. These groups came forward, says Hickey, to say, "We can't talk about police abuse and discrimination and mistreatment of trans people in this city – and LGB people, too – without talking about the way that sex work laws are enforced." They issued a broad demand that sex work be decriminalized, and more specifically, that MPD repeal what are known as "prostitution-free zones," which are declared in order to target anyone in a specific area as a suspected sex worker.

The prostitution-free zones got a lot of publicity when they first went into effect as part of the city's 2005 Omnibus Public Safety Act—the Associated Press attempted to have one declared around their Washington offices—but police now say they've stopped using them. At one public hearing about the zones, Hickey says, "police said we've not arrested anyone under them – which is something we noticed, as advocates – because they were concerned about the constitutionality." At a 2012 hearing before the District's Committee on the Judiciary on a proposal to extend the zones, the D.C. Attorney General's office testified that they had "substantial concerns about the bill in its current form, as related to its constitutional soundness and its practical utility."

Darby Hickey is a sex worker rights and trans rights activist in D.C. (Melissa Gira Grant)

Even though members of law enforcement raised concerns about this kind of anti-prostitution policy, politicians tend to remain quiet when it comes to reforming these laws. Sometimes they celebrate them. When he was running for re-election to his former At-Large seat in 2006, Phil Mendelson, now the D.C. Council Chairman, made the benefits of prostitution free-zones part of his campaign platform. "It was showing he was cracking down on crime in the city," says Hickey.

Hickey interviewed Mendelson in 2007, as part of a research project with Alliance for a Safe and Diverse DC. Despite his claiming the prostitution-free zones as a highlight of his legislative record, he told Hickey regarding prostitution, "from a very broad perspective it would probably make sense to take a different approach and regulate it instead of prohibit it, but politically that is not viable." 

Despite the District government's acknowledged constitutional concerns with the prostitution-free zones, that doesn't mean police have stopped arresting people suspected of selling sex, says Cyndee Clay from HIPS. "They're just doing sweeps — they'll just arrest people and put them in jail for 30 days and then release them." About four months ago, she says, 36 people were arrested in such a sting, and 10 of them were HIPS clients. The 30 days in jail is meant as a hold, she says, but "it becomes their sentence." 

"There's your 36 sex workers," I respond, a bit weakly, the same number as the Urban Institute said they surveyed.

"Right?" Cyndee smiled just a little. "They could have talked to those people."

Still, there are signs that D.C. as a city is becoming more receptive to hearing sex worker and advocate concerns. A bill to repeal the prostitution-free zones has the support of five D.C. Council members, just two votes shy of the seven needed for its passage. 

"We have an opportunity to challenge some of these laws in D.C. right now," says Clay. "If we can decriminalize marijuana because more people of color are getting arrested, can we talk about how more transgender women are arrested for sex work?"

This story is part of an ongoing series about the state of sex work in America. Read the first installment here. 

About the Author

  • Melissa Gira Grant is a New York-based writer and journalist. Her work on sex, politics, and technology has appeared The NationWiredGlamourThe GuardianIn These Times, and The Washington Post, among other publications. She's the author of Playing the Whore: The Work of Sex Work (Verso, 2014).