Transgender Americans are under attack. Across the country, Republicans have introduced an avalanche of legislation to restrict access to gender-affirming health care, censor how gender is discussed in schools, prevent trans people from using public bathrooms and even ban drag shows and cross-dressing onstage. In March, Tennessee criminalized drag performances where children are present. In April, Montana Republicans barred Representative Zooey Zephyr from the floor of the state House in part for her vocal opposition to a similar bill, which is now headed to the governor’s desk.
Attacks on gender nonconformity — and cross-dressing in particular — have a long history in America. Anti-drag laws similar to the one passed in Tennessee and even more restrictive cross-dressing bans were part of municipal criminal codes for most of the 20th century. But just as the laws aren’t new, neither is the fight against them. Over the course of the 1960s and 1970s, gender nonconforming activists argued that sartorial censorship harms 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 just by highlighting effective legal strategies but also by reminding us that state-mandated gender conformity is an affront to everyone’s right of self-expression.
Legal attacks on gender expression like those being passed today in Florida, Iowa, Montana and elsewhere have disturbing similarities to those that were on the books throughout most of the 20th century: Then, cities across the country criminalized appearing in public “in a dress not belonging to his or her sex.” Others prohibited “female impersonators” or “masquerade.” These laws were routinely used to harass and discredit anyone who transgressed gender norms, including feminists who wore men’s clothes to protest gender inequality, sex workers signaling that they were available to be engaged, drag performers, cross-dressers and people who today might identify as transgender. Arrests could have major consequences. Many people arrested under these ordinances lost their jobs and families.
Others endured violence and humiliation from the police. Toni Mayes, a trans woman in Houston, did everything she could think of to avoid running afoul of a law banning cross-dressing “with intent to disguise” in the mid-1970s. She went so far as to ask the City Council and the police department for ID cards to protect trans people from these arrests. When they refused, Ms. Mayes began wearing a sign that read “My body is male” to avoid the appearance of hiding her identity. The police proceeded to arrest her eight times in three years anyway. At one point she spent nine hours in a men’s jail. “I felt terrible,” she later told a reporter. “I had my wig torn off and there were a lot of remarks I didn’t care for.” The publicity meant that she was “immediately recognized everywhere, can’t get a job, and has no income.” She resolved to bring a constitutional challenge to the Houston ordinance so that other people could avoid the same harassment.
Ms. Mayes was not alone. Defendants had long challenged their arrests under these laws, but in the late 1960s and 1970s, a network of gender nonconforming activists began to win constitutional claims. These lawsuits helped solidify a growing political and social network of people who transgressed gender norms — “gender outlaws,” to use the 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 by the end of the 1980s, according to my research.
Some litigants argued that cross-dressing bans were unconstitutionally vague. Lawyers even brought fashion writers into court to testify that it was impossible to determine, for instance, 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, 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 pleased, based on the guarantee of free expression in the First and Fourteenth Amendments.
These victories linked transgender rights to the broader idea that the Constitution protects gender nonconformity in general. They reminded courts that all people have an equal right to choose how they present in public, including in their choice of clothing and hairstyle. Transgender people, certainly, but also people who perform drag or enjoy a range of fashions or reject norms of masculine or feminine presentation for whatever reason. In other words, the virtue of these lawsuits was that they both advanced transgender rights and protected a key realm of self-expression for others.
We would do well to remember this history as we confront the anti-trans political machine. Now, as then, drag bans are susceptible to constitutional challenges for vagueness and suppressing free expression. Indeed, a drag theater group in Memphis has already raised a First Amendment challenge to Tennessee’s law, winning a temporary restraining order in federal court. Other bills will be vulnerable to similar arguments.
It may be tempting to see drag bans as a relatively minor sideshow in the broader attack on transgender people. After all, the real goal seems to be eliminating transgender people of all ages. According to the reporter and activist Erin Reed, 16 states now prohibit trans youth from accessing best-practice medicine. Gov. Ron DeSantis of Florida recently began compiling a list of college students who have sought treatment for gender dysphoria; on May 17, he signed a set of laws drastically restricting trans people’s access to health care. A leading conservative activist told The New York Times that his organization intends to outlaw gender-affirming health care for all trans people, including adults, but has focused on children because of “consensus” that it is “a political winner.”
That strategy thrives where people who are not transgender believe that attacks on trans people do not affect them. But this argument is exactly backward. Whether we are transgender or cisgender, we are all harmed by state-mandated gender norms. Much like those of the 1970s, today’s fashions crisscross the gender binary, from luxury brands to athleisure. Gender play through clothing — whether someone is trying out 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 personal appearance and performance, regardless of our sex assigned at birth. History 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 an academic fellow at Columbia Law School.
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