Transgender Americans are under attack. Across the country, Republicans have introduced a spate of legislation to restrict access to gender-affirming healthcare, censor how gender is discussed in schools, prevent trans people from using public restrooms, and even ban entertainment. drag and cross-dressing on stage. In March, Tennessee criminalized drag performances where children are present. In April, Montana Republicans barred Rep. Zooey Zephyr from the state House in part because of her outspoken opposition to a similar bill, now headed to the governor’s desk.
Attacks on gender nonconformity, and cross-dressing in particular, have a long history in the United States. Anti-drag laws similar to the one passed in Tennessee and even more restrictive cross-dressing bans were part of municipal penal codes for most of the 20th century. But just as the laws are not new, neither is the fight against them. Throughout the 1960s and 1970s, gender nonconformity activists argued that clothing censorship hurts anyone who deviates from rigid gender norms. These activists won in court. Looking back on their victories can inspire trans people and their allies today, not only by highlighting effective legal strategies, but also by reminding us that state-mandated gender conformity is an affront to everyone’s right to express themselves.
Legal attacks on gender expression like those being passed today in Florida, Iowa, Montana and elsewhere bear unsettling similarities to those that were on the books for most of the 20th century: cities across the country, then. criminalized appearing in public “in a dress not belonging to their sex.” Others outlawed “woman impersonators” or “masquerade.” These laws were commonly used to harass and discredit anyone who transgressed gender norms, including feminists. who wore men’s clothing to protest gender inequality, sex workers who indicated they were available for engagement, drag performers, transvestites, and people who today might identify as Transgender Arrests could have significant consequences Many people arrested under these ordinances they lost their jobs and their families.
Others endured violence and humiliation from the police. Toni Mayes, a trans woman from Houston, did everything she could think of to avoid violating a law that prohibited cross-dressing “with the intent to disguise” in the mid-1970s. She went as far as to petition City Hall and the police department identification cards to protect trans people from these arrests. When they refused, Ms. Mayes began wearing a sign reading “My body is male” to avoid the appearance of concealing her identity. Regardless, the police proceeded to arrest her eight times in three years. At one point she spent nine hours in a men’s jail. “I felt terrible,” she later told a reporter. “My wig was ripped off and there were a lot of comments that I didn’t care about.” The publicity meant that she was “immediately recognized everywhere, she can’t get a job and she has no income.” She resolved to file a constitutional challenge to the Houston ordinance so that others could avoid the same harassment.
Ms. Mayes was not alone. Defendants had long contested their arrests under these laws, but in the late 1960s and 1970s, a network of gender non-conforming activists began winning constitutional claims. These lawsuits helped solidify a growing political and social network of gender violators—“gender outlaws,” to use author Kate Bornstein’s evocative phrase—some of whom identified as transvestites, street queens, and transsexuals. Gender outlaws helped defeat similar ordinances in at least 16 cities in the late 1980s, according to my research.
Some litigants argued that cross-dressing prohibitions were unconstitutionally vague. Lawyers even brought fashion writers to court to testify that it was impossible to determine, for example, the gender of a pair of shoes. In the words of one judge: “What distinguishes the male high-heeled shoe from the female? Is it the thickness of the heel or the sole, the design of the toe box, the contour of the instep or just what? Other litigants suggested that gender nonconformity deserved constitutional protection in its own right. When two trans women were arrested in Chicago, for example, they successfully argued that the law violated their constitutional right to dress as they please, based on the First and Fourteenth Amendment guarantees of free speech.
These victories tied the rights of transgender people to the larger idea that the Constitution protects gender non-conformity in general. They reminded the courts that all people have the same right to choose how they present themselves in public, including in their choice of clothing and hairstyle. Transgender people, certainly, but also people who practice drag or enjoy a variety of fashions or reject male or female standards of presentation for whatever reason. In other words, the virtue of these lawsuits was that they both promoted the rights of transgender people. and protected a key realm of self-expression for others.
We would do well to remember this story as we stand up to the anti-trans political machine. Now, as then, drag bans are open to constitutional challenge for vagueness and suppression of free speech. In fact, a drag theater troupe in Memphis has already raised a First Amendment challenge to Tennessee law, winning a temporary restraining order in federal court. Other bills will be vulnerable to similar arguments.
It can be tempting to view drag bans as a relatively minor sideshow in the broader attack on transgender people. After all, the real goal seems to be to eliminate transgender people of all ages. According to reporter and activist Erin Reed, 16 states now ban trans youth from accessing best practice medicine. Florida Gov. Ron DeSantis recently began compiling a list of college students who have sought treatment for gender dysphoria; On May 17, he signed a set of laws that drastically restrict trans people’s access to health care. A prominent conservative activist told The New York Times that his organization intends to ban gender-affirming healthcare for all trans people, including adults, but has focused on children because of “consensus” that it is “a political winner.”
That strategy thrives where non-transgender people believe that attacks on trans people do not affect them. But this argument is exactly backwards. Whether we are transgender or cisgender, we are all harmed by state-imposed gender norms. Like those of the 1970s, today’s fashions crisscross the gender binary, from luxury brands to sportswear. Gender play through clothing, whether someone is trying on traditionally masculine or feminine styles or selecting gender-neutral options, is more popular than ever. Drag bans strike at this fundamental freedom to express our gender through appearance and personal performance, regardless of our sex assigned at birth. The story serves as a powerful reminder that trans civil rights strengthen freedom of personal expression for all.
kate redburn (@k_redburn) is a legal historian and academic fellow at Columbia Law School.
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