''Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86' by Kate Redburn in (2023 Law and History Review 1-45 comments
Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.
The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.
Redburn states
In the early afternoon of March 24, 1964, John Miller was approaching his home on the Upper West Side of Manhattan. He had just crossed the intersection of West End Avenue and Ninety-First Street when a police officer stopped him and asked his name. When he replied “Joan Miller,” he was taken into custody. iller, later described by The New York Times as a “tall, burly man of 58,” was a father with a military record. He was also a transvestite, or cross-dresser, which meant that he enjoyed dressing as a woman. His crime was violation of Section 887(7) of New York State's vagrancy law, by then over a century old, which made it illegal to appear in public with one's “face painted, discolored or concealed, or being otherwise disguised, in a manner calculated to prevent. . . being identified.” While the law did not explicitly reference clothing, police often used it to punish cross-dressing, and courts usually accepted that interpretation. Most of the time, people arrested under such laws did not mount expensive legal defenses, and those who did rarely appealed past the trial court level.
John Miller was different. Yes, like many gender outlaws before him, he could not afford to mount a legal defense. In fact, his arrest cost him his job. But Miller had advantages that his predecessors did not: he could turn to a community of other transvestites through new networks of identification and support. Miller was on the guiding council of Full Personality Expression (FPE), one of the earliest social and political organizations for transvestites, whose reach eventually encompassed much of the United States and parts of Western Europe. The organization pledged $300 to his cause. Miller also broadcast requests for financial support in Transvestia and Turnabout, two early transvestite publications, and received at least seventy contributions from the United States, Canada, and England. The geographic range of this support reflected both the broad scope of the emerging transvestite network, and the community's shared desire to challenge cross-dressing regulation. As one donor from Texas put it in a quick note with his contribution, “We need to get rid of these damn laws.”
Laws banning cross-dressing were ubiquitous in urban America by the middle of the twentieth century. Most were more explicit than New York's Section 887(7), like the law in Columbus, Ohio, which criminalized any person who “shall appear upon any public street or other public place . . . in a dress not belonging to his or her sex.” Starting in the late 1960s, however, criminal defendants began to successfully undermine cross-dressing bans in a range of cities, from New York and Los Angeles to Toledo and Champaign-Urbana. Hoping to challenge their arrests, these defendants argued that anti-cross-dressing laws were facially unconstitutional, or unconstitutional as applied to them. As their successes mounted, gender outlaws began to bring civil lawsuits against cities to enjoin them from enforcing their anti-cross-dressing ordinances, marking a shift from the defensive posture of the criminal defendant to the offensive posture of the civil litigant. By 1980, criminal defendants had successfully challenged cross-dressing arrests in at least sixteen cities, introducing many courts to transvestite and transsexual people in the process.
To the extent that historians have addressed the decriminalization of cross-dressing, they have understood it as an adjunct to a broader attack on vague municipal laws. This article restores the anti-cross-dressing cases to their place within the LGBT constitutional narrative. In that story, the campaign to decriminalize sodomy looms large. Substantive due process rights to sexual privacy and equal protection for sexual and gender minorities became the primary constitutional vehicles for vindication of LGBT rights and full sexual citizenship, culminating in the Supreme Court's endorsement of same-sex marriage in 2015. By reconstructing the disjointed efforts to repeal anti-cross-dressing laws across the country, this paper points to the multiplicity of legal paths for constitutionalizing gender non-conformity in the early days of LGBT constitutional litigation.
The challenges also bring into focus a distinct legal movement of gender outlaws. Although they were not centrally coordinated, gender outlaws across the country developed their own legal strategy to decriminalize cross-dressing, and in some cases, constitutionalize protections for gender non-conformity. They did so in an era before legal nonprofits organized a cohesive gay and lesbian legal agenda, before that group added transgender legal issues to the mix, and indeed before the identity category “transgender” was in wide circulation.
Historians of LGBT law in this period tend to emphasize how gay and lesbian “homophile” activists of the 1950s and 1960s promoted the idea that homosexuality was an identity rather than stigmatized conduct or medical pathology. In their efforts to organize against police harassment, they drew inspiration from the Black civil rights movement to portray homosexuals as an oppressed minority group. Despite changes in medical taxonomy and self-identification, police and courts did not easily differentiate between sexual orientation and gender identity.
For homophile activists, that was part of the problem. To make the analogy sympathetic, they distanced their politicized homosexual identity from its former bedfellows—gender inversion, racial impurity, sex work, poverty, and crime. Their legal strategy reflected that analysis from the beginning as they mobilized gay identity to articulate a gay legal subject with protected rights to assemble, have sex, organize on campuses, work, and form families as gay people. Those campaigns laid the groundwork for the constitutional arguments most associated with the contemporary LGBT movement: sexual privacy and the civil rights of “discrete and insular minorities” under the Equal Protection Clause of the Fourteenth Amendment.
Unlike many gay rights legal claims of the same period, challenges to cross-dressing bans often succeeded without analogizing gender non-conformity to identity-based minority groups. The split in legal claims mirrored social transformation on the ground. Gender outlaws entered courts amid a major shift in how medical authorities and social groups understood the relationship between sexuality and gender, an epistemic change that Joanne Meyerowitz has called the “taxonomic revolution.” In these formative years of movement and identity consolidation, gender outlaws strategically deployed and obscured their identities, exploiting confusion about gender-bending and playing off of courts’ ignorance.
In some cases, challengers attempted to introduce the legal system to transvestites, transsexuals, and drag queens without closing the door on other gender outlaws. These efforts met with mixed success: courts began to recognize constitutional rights, but litigation also limited which gender outlaws would benefit. Some challengers sought to expand personal freedoms to include gender expression through clothing, but others yoked trans civil rights to medical authority, defining the trans legal subject as a person seeking medical treatment for pathologized transsexualism. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. It also emphasizes the role of legal institutions, alongside social life and medical discourse, in shaping the analytical categories of gender. Over time, one strand of gender outlaw experience consolidated and became legible to courts as a rights-bearing subject, which I call the trans legal subject.
Three tactics typify the overall strategy. First, gender outlaws challenged cross-dressing bans for vagueness, inviting courts to invalidate the laws without asking judges to adjudicate, or even understand, their gender identities at all. In a second set of challenges, lawyers argued that cross-dressing was a form of expression protected by the First and Fourteenth Amendments. Under this theory, cross-dressing conduct could be protected regardless of the defendant's gender identity. In a final set of cases brought under the Eighth Amendment, lawyers did make claims based on a consolidated sense of identity, telling courts that cross-dressing was a treatment for medically diagnosed transsexuality.
Many historians have noted the salience of gender non-conformity in anti-homosexual policing in the decades following World War II. But such policing was not limited to gays and lesbians, precisely because homosexuality was not thought apart from other stigmatized behavior. Police targeted a broad range of activities, which Emily Hobson has called “street life,” including Black and Brown youth culture, “homosocial contact among working-class men, homosexuality and gender transgression, sex work, and interracial contact of various kinds.” Homophile activists believed that social inclusion and legal recognition required a more respectable image. Many histories build from this foundation by following the homosexual once he was shorn of his seedier associations, leaving the subject of gender non-conforming policing both widely remarked upon and relatively under-studied.
This article asks what happened to the gender outlaws who did not, could not, or would not see themselves in the new homosexual political identity. The answer reveals early constitutional arguments that gender non-conformity deserved protection on its own terms. It also invites a reconsideration of the contemporary LGBT legal movement. Legal histories often describe a gay and lesbian civil rights movement emerging from the ashes of gay liberation in the early 1970s, and only adding the “T” to LGBT in the 1990s. Returning to the history of the late 1960s and 1970s, however, suggests an alternative periodization in which campaigns for trans and gay civil rights sprouted from the same root, and grew in parallel. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.
The cases described in this article form a fractured archive of roughly thirty legal challenges from 1963 to 1986. They are national in scope, arising primarily in the West, Midwest, and Northeast, with some appearances in Texas and Florida. About two-thirds appear in published case reporters that include important details such as the names and affiliations of the attorneys and, in some cases, their written submissions. Other cases come from print media, mostly within gay, lesbian, transvestite, transsexual, and drag publications. The level of detail varies significantly, making it difficult to generalize about the attorneys who brought these cases or the arguments they raised. Regional branches of the American Civil Liberties Union (ACLU) made several important contributions, as did the national office after 1973, and one significant case was brought by a legal clinic at Northwestern University School of Law.
Despite these limitations, this article tells a new story. Gender outlaws and their lawyers drew on the popularity of unisex clothing, movements for free expression, and emerging medical discourses on gender identity to argue that cross-dressing could be a benign fashion choice, a protected expression, or a necessary medical treatment for transsexuality. Their successes helped topple cross-dressing regulation in cities and towns across the country, but not without ambivalent results for gender outlaws on the whole. In order to make gender non-conformity legible to the legal system, lawyers translated the diverse array of gender outlaw experiences into a distinctly trans legal subject, defined by medicalized trans identity. Out of disjointed legal defense of gender outlaws emerged a transgender legal movement.
