Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86

Law & History Review, 1-45 (2023).

35 Pages Posted: 8 Jan 2023 Last revised: 13 Jan 2023

See all articles by Kate Redburn

Kate Redburn

Columbia Law School; Yale University, Faculty of Arts & Sciences, Department of History

Date Written: January 5, 2023

Abstract

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.

Full text: https://www.doi.org/10.1017/S0738248022000384

Keywords: constitutional law, transgender legal history, law and social movements, legal subject

Suggested Citation

Redburn, Kate, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86 (January 5, 2023). Law & History Review, 1-45 (2023)., Available at SSRN: https://ssrn.com/abstract=4318644 or http://dx.doi.org/10.2139/ssrn.4318644

Kate Redburn (Contact Author)

Columbia Law School

435 West 116th St
NEW YORK, NY 10027

Yale University, Faculty of Arts & Sciences, Department of History ( email )

New Haven, CT
United States

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