harassment. Examining the two together offers afor understanding the origins and scope of the carcerai state that wouldof the 1

In the 1970s, as the nation embarked uponits unprecedented experiment in tightened drug enforcement and racialized mass incar-ceration, half the states repealed their sodomy laws, yet historians have only just begun to

This article suggests that a translegal movement developed separately but in tandem

“Whathistories have we lost or failed to map in arriving at a place where transgenderinclusion in the gay movement seems like a self-evident necessity to many gaypeople and completely illogical to others?

From the perspective of these cases, gay rights seems to ignore transgen-der issues. Transgender people have not been acknowledged by the SupremeCourt as a protected class in equal protection doctrine

, a reminder that the trajectory of trans legalhistory is not linear

Unlike gay and lesbian legal strategy from the homo-phile movement forward, those cases were an attempt for gender outlaws tofind constitutional safe harbor without defining themselves against their lessrespectable siblings, sometimes without defining themselves at all. Gender out-laws may have been left out of “homosexuality,” but they were not left behind.

New Year’s raid

Rather than seek constitutional protection fornon-conforming dress in general, lawyers framed the case as a coalitionbetween gay and trans people to tackle the entire ordinance.

it required trans people to ask their doctors to help them prove that their iden-tities were legitimate

“we would forget the teachings of the EighthAmendment if we allowed sickness to be made a crime and permitted sick peo-ple to be punished for being sick.”

gender outlaw

In another sense, however, the defense’s arguments had worked too well.The lawyers wanted to underscore that the liberty interest in clothing haddeep stakes for their clients, so they conveyed cross-dressing as primarily apart of medical treatment for transsexuals. This logic structured the decision,limiting its protections to cross-dressing motivated by transsexuality. In otherwords, legal legibility came at the price of a narrow trans legal subject

substantive due process

She argued that the ordinance violated due process, was unconstitutionallyvague, and violated the defendants’ constitutionally protected freedom of per-sonal appearance

ive-year battle to topple Chicago’santi-cross-dressing ordinanc

Ratherthan challenge the notion of gender fraud, they argued that Hirshhornwould be “concealing [their] identity only if [they] wore men’s clothing.” Inother words, Hirshhorn avoided gender fraud by cross-dressing

In addition, itis not uncommon today for individuals to purposefully, but innocently, wearapparel which is intended for wear by those of the opposite sex.

an age of unisex clothing, how could an ordinary citizen determine whethertheir clothing would violate the law?

The decision of 1972 invalidated Jacksonville’s vagrancy ordinance on thegrounds that it “fail[ed] to give a person of ordinary intelligence fair noticethat his contemplated conduct is forbidden by the statute,” and made “criminalactivities which by modern standards are normally innocent,” in violation ofdue process guarantees in the Fifth and Fourteenth Amendments.

A final subset of cases raised arguments under the Eighth Amendment,framing trans identity as an “involuntary condition” that could not be crimi-nalized. This theory drew judicial attention closest to defendants’ personalidentities and gained sympathy in court by highlighting the double-bind facingtranssexuals.

Trans memoirist Lou Sullivan was a member of theACLU’s trans committee in 1984.

solicitation

amicus brie

challenges rooted in the Firstand Fourteenth Amendments asserted something like a freedom to cross-dressas part of defendants’ right to choose their clothing, either as a form of pro-tected expression or as a substantive due process right

In the vagueness cases, lawyersoften steered courts away from inquiries into the deeper meaning of their cli-ents’ cross-dressing, instead folding the dressing practices of gender outlawssuch as gay party-goers, drag queens, transvestites, and transsexuals into thebroader trend toward unisex styles.

aws exceeded municipal power to regulatewelfare

defense lawyers groped for statutory interpre-tation and constitutional arguments amid significant legal change. In the1960s, as state vagrancy laws came under pressure, it was not obviouswhether arrests would be more vulnerable to legal attacks that character-ized cross-dressing as harmless sartorial conduct or expression of a per-sonal status.

Making rights claims as trans people did not necessarily translate intolegal arguments based on trans identities, however. Prince was notorious for defin-ing transvestism against homosexuality and transsexuality, and yet she articulatedthis expansive legal imagination. She suggested that challenges to cross-dressingregulation like Miller’s would promote “freedom of expression in clothing” and“greater freedom for the male to express himself

many ordi-nances included an intent requirement

In order to access surgery in the Benjaminmodel, transsexuals were required to undergo a psychological evaluationand years of social transition, which included prescribed cross-dressing andhormones

This archive reflects police priorities of the period, which focused onsexual deviance among people the police perceived to be men

Cross-dressing bans were also enforced without suspicion of other crimes

dangerous sellouts

These examples show how homophile activists differentiatedgay identity from criminalized behavior, including public, commercial, under-age, and non-consensual sex, as well as gender non-conformity.65 Cleansing theimage of the homosexual was a key tactic in early attempts to secure gay civilrights

pressed thedistinction between conduct and status in defense of his civil rights as a gayman. He told the jury that he was indeed homosexual but protested that hehad not broken the law

fforts to ana-lytically distinguish homosexuality from heterosexuality based on sexualobject choice irrespective of gender presentatio

During World War II, the military also directed sig-nificant resources toward controlling vice at home.

prevent bars and restaurants from becoming “disorderly” by prohibiting vari-ous “persons of ill repute” from congregating there. 50 Although most new stat-utes did not mention homosexuality or cross-dressing, liquor officialsinterpreted their mandate to include regulating gender and sexual deviance.

Inresponse, the state government passed an anti-mask law, Section 887(7) of theNew York Code of Criminal Procedure, the same law that ensnared John Miller.

organizations of vigilantes known as “Indians.

nti-rent movement

Anti-masquerade law

Regulating genderdeviance may have been an attempt to thwart nineteenth-century feminist dressreformers who politicized Victorian fashions as a symbol of women’s subordina-tion and fought to wear bloomers in public.

St. Louis appears to have been the first place to do so in 1843, and Miami mayhave been one of the last in 1952. No comprehensive national survey has yetbeen conducted, but we know that at least seventy municipalities and severalstates in every region of the country had cross-dressing regulation by the1960s. Their coverage ranged from major metropolitan centers such asChicago and Los Angeles to small cities and towns including Cheyenne,Wyoming and Vermillion, South Dakota.

The most common ordinances criminalized any person who “shall appear uponany public street or other public place . . . in a dress not belonging to his or hersex.”33 Some towns only penalized cross-dressing “with intent to conceal his orher sex,” as in Chicago, or prohibited cross-dressing with intent to commit acrime, as in San Diego.34 In cities such as Detroit and Miami Beach, ordinancesspecified only that men could not wear women’s clothes in public

The level of detail varies significantly, making it difficult to generalize aboutthe attorneys who brought these cases or the arguments they raised.

Homophile activists believed that social inclusion and legal recogni-tion required a more respectable image. 26 Many histories build from this foun-dation by following the homosexual once he was shorn of his seedierassociations, leaving the subject of gender non-conforming policing bothwidely remarked upon and relatively under-studied.

the salience of gender non-conformity in anti-homosexual policing in the decades following World War II

Over time, one strand of gender outlaw experienceconsolidated and became legible to courts as a rights-bearing subject,which I call the trans legal subject

In some cases, challengers attempted to introduce the legal system totransvestites, transsexuals, and drag queens without closing the door onother gender outlaws

In these formative years of movement and identityconsolidation, gender outlaws strategically deployed and obscured their identities,exploiting confusion about gender-bending and playing off of courts’ ignorance

Unlike many gay rights legal claims of the same period, challenges to cross-dressing bans often succeeded without analogizing gender non-conformity toidentity-based minority groups

While the law did not explicitly referenceclothing, police often used it to punish cross-dressing, and courts usuallyaccepted that interpretation

Scholars are still unsure why American cities passed cross-dressing bans over theclosing decades of the nineteenth century.