Cross-Dressing and the Law

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Cross-dressing and the Law
Cross-dressing is the act of dressing in the clothing characteristic of the opposite sex.[1]  Cross-dressing, however, intersects (and might be confused with) transgender issues, because transgender persons might wear clothing appropriate to their “chosen” sex, rather than their biological sex. The American Psychological Association (“APA”) defines the term transgender as “an umbrella term used to describe people whose gender identity (sense of themselves as male or female) or gender expression differs from that usually associated with their birth sex.”[2]   The APA also lists cross-dressers as a subset of the transgender population, noting that there is a range among the extent of cross-dressing and the feelings or expression associated with the act of cross-dressing.[3] Both the intersection and differences between cross-dressing and transgender issues are explored in greater detail below, as both groups have been targeted by laws that seek to police any sort of gender subversion. 
Early History:  Laws Regulating at Cross-Dressing
            U.S. cities began to adopt laws prohibiting cross-dressing in the mid-1800s, although the purpose of the laws and the groups targeted shifted over the years. St. Louis, for example, adopted Ordinance No. 5421 in 1864 which stated: “Whoever shall, in this city, appear in any public place in a state of nudity, or in a dress not belonging to his or her sex, or in an indecent or lewd dress . . . shall be deemed guilty of a misdemeanor.”[4] By the turn of the century, dozens of cities had similar laws that targeted cross-dressing.[5] 
            Scholars have identified a few trends in the laws that, according to police records and anecdotal evidence, were used to arrest cross-dressing women and men.[6]  For example, while the St. Louis ordinance addressed public nudity and indecency, other laws aimed to prevent the concealment of one’s sex, and others still were aimed at the concealment of identity. A 1845 New York state statute, for example, defined an unlawful vagrant as “[a] person who, having his face painted, discolored, covered, or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway.”[7] A New York man was convicted under this law as recently as 1968, following his arrest in subway station where he was traveling home from a masquerade party. In New York v. Archibald, the First Department found that “the defendant admittedly appeared in a public subway station dressed in female attire and concealed his true gender. In doing so, the defendant was in violation of . . . section 887 which forbids a disguise ‘in a manner calculated to conceal his being identified.’”[8] 
            Nevertheless, by the turn of the century, cross-dressing became less of a curiosity and increasingly associated with gender deviance.[9]  The earliest laws regarding cross-dressing may also have been partly a response to the women’s movement, as “the image of women wearing trousers signified a broader claim for participation in the workforce outside the home.”[10] Feminist historians of the 20th century have more closely documented the “association between dressing as men and the demands of young women for greater personal freedom.”[11]  Moreover, during the early 1900s, instances of cross-dressing, particularly among woman dressing like men, came under the suspicion of insanity or homosexuality.[12] 
The Rise and Fall of Cross-dressing Ordinances
Municipal ordinances outlawing cross-dressing proliferated throughout the 20th century, which was perhaps a reflection of society’s perception of cross-dressing as sexual deviance. In St. Louis, about 6 people a year were arrested for “appearing in dress not belonging to his sex” between 1887 and 1920s, after which arrests went off record.[13]  The St. Louis ordinance was enforced until 1986, when a federal court ruled it and the law against lewd behavior invalid on vagueness grounds.[14]
Individuals prosecuted under the cross-dressing ordinances in other municipalities began to successfully challenge the laws on vagueness grounds. In City of Columbus v. John Rogers, the Ohio Supreme Court struck down a Columbus statute which outlawed “dress not belonging to his or her sex” because of the statute’s vagueness.[15] The court pointed that “[m]odes of dress for both men and women are historically subject to changes in fashion” and that “it is not uncommon today for individuals for purposely, but innocently, wear apparel which is intended for wear by those of the opposite sex.”[16] 
Other successful challenges were based on what was essentially a claim for a medical exemption, based on a person’s “transsexual” status. In City of Chicago v. Wallace Wilson and Kim Kimberly, two defendants were arrested after they emerged from a restaurant wearing female clothes, in violation of a statute similar to the Columbus statute.[17] The defendants identified themselves as “transsexuals” and testified that part of their pre-operative therapy was to wear female clothing. The court found that the reasons for the city’s ban on cross-dressing in public, such as protecting against fraud and preventing antisocial conduct, were not sufficient to infringe upon the defendants choice of dress in this case.[18] The convictions were reversed because the law was invalid as applied in this case, although the court did not find the statute invalid on its face.
Regulation of Dress in Schools
One area in which regulations restricting cross-dressing have been held valid is in schools, usually on the grounds that dress regulations are reasonably related to valid educational purposes of community values and school discipline.[19] The Supreme Court held in Tinker v. Des Moines Independent School District that teachers and students have First Amendment rights, but they are balanced against the school authorities’ need to control the schools.[20] In Tinker, the court found that students who wore armbands to protest the war in Vietnam exercised core political expression, did not disrupt the school and that “undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom of expression.”[21] 
Tinker has typically not been extended, however, to protect the First Amendment expression of students who choose to wear clothes “of the opposite” sex to school. Some scholars have argued that the court is not prepared to protect what it sees as “sexual speech” to the same extent as “political speech.”[22]  Others have proposed that courts should recognize a separate right to “freedom of dress,” under which any regulation regarding the right to self-presentation (“the right to choose hairstyle, makeup, clothing, shoes, head coverings, tattoos, jewelry, and other adornments that make up public image”) would be analyzed under the strictest scrutiny.[23]
      In Harper v. Edgewood Board of Education, two students were arrested when they attended the high school prom in “clothing of the opposite sex.”[24] The court declined to extend Tinker to this case, noting that although First Amendment rights apply in schools, the Court in Tinker had noted that school officials have “comprehensive authority . . . to prescribe and control conduct in schools.”[25] The court thereafter held that there was no First Amendment violation because the school board’s dress regulations were “reasonably related to the valid educational purposes of teaching community values and maintaining school discipline.” The court also found that there was no 14th Amendment equal protection violation because the school dress code did not differentiate based on sex and required all students to dress in conformance with community standards. 
In the cases discussed above, there is no discussion of whether the individuals found to have violated school dress regulations were transgender. In contrast, in Pat Doe, By Her Next Friend, Jane Doe v. John Yunits, Pat Doe, a transgender student, wanted to wear female attire to school. [26] In that case, the court found that attire was “expressive conduct entitled to constitutional protection.” Doe, accordingly, was “expressing her identification with that gender” and allowing her to wear female clothes did not interfere with the work of the school.[27] The court also found that the school was discriminating against Doe because of her “failure to conform with the norms of [her] biological gender.” 
Cross Dressing and High School Prom Regulations:
            Students’ rights to freedom of expression is a constitutional concern that both state and federal court have struggled with, often determining whether or not dress code provisions violate a student’s constitutional rights under the First and Fourteenth Amendments.  Dress regulations that are gender specific for school functions, such as a high school prom, raise serious constitutional issues, especially where transgender students are concerned.  In Harper v. Edgewood Board of Ed., the court in Ohio held that a school’s dress code was enforceable at school related events, such as prom.  Further, the dress code provisions that prohibited boys from wearing dresses and girls from wearing tuxedos were not Equal Protection violations because the provisions required students to dress in conformity with social norms (655 F. Supp. 1353 (S.D. Ohio 1987)).  Where a student who was born one sex identifies with the other, the question arises as to whether or not enforcing social norms unconstitutionally infringes on that student’s right to self expression and equal protection.  This raises additional questions regarding the lack of constitutional protection for sexual orientation and transgender individuals.  In Gary, Indiana, a prom dress code ran afoul of a transgender student, born a male but considers herself a female, who wanted to wear a dress to the prom. (Dr. Jillian T. Weiss, Prom Dress Code Lawsuit Moves Forward, Newstex Web Blog (Feb. 21, 2008)).  Kevin Logan, who goes by “K.K.”, was not allowed to enter his senior prom since he was wearing a woman’t pink evening gown. (See id.).  Logan filed a lawsuit against the Board of Education claiming that school administrator’s had not only violated his First Amendment freedom of expression, but also that he has a “right to be free from discrimination on the basis of gender identity at a public school that receives federal funds.” (See id.).  Although nothing has been concluded about the court action, the attorneys for the district court stated that they did not feel this was a proper subject for federal court jurisdiction because Logan had failed to raise how a right to wear a dress to the prom is a constitutional issue. (See id.).
Relationship of Transgender Law to Disability Law
            Transgender issues and related, the barriers faced by transgender individuals who wish to dress in conformance with their gender identity, have a delicate relationship with disability law. On the one hand, the recognition of gender dysphoria by the Diagnostic and Statistic Manual of Mental Disorders (DSM-III) might allow transgendered individuals to gain protection under State disability laws (when Congress passed the ADA in 1973 it specifically excluded transsexuals from protection under the ADA and the Rehabilitation Act).[28] On the other hand, some activists within the transgender community find any reliance on the medical community for expansive rights extremely problematic. Dean Spade, for example, points out that the dependency on medical definitions poses several problems.[29] First, many low income transgender people are not able to afford the treatment and process of visiting psychiatrists necessary for a GID diagnosis.[30] Second, such a diagnosis reinforces the gender binary that advocates such as Spade seek to dismantle.[31] Third, Spade believes that GID is still misused by some mental health practitioners as the basis for involuntary psychiatric treatment and does not want to legitimize such practices.[32] 
There are instances, however, where a GID diagnosis has afforded a transgender person greater protection under the law. In Matter of Jean Doe v. William Bell, Commissioner of NYC ASC, a New York supreme court found that a 17-year old biological male who identified as female was a disabled person for the purposes of the NY Human Rights Law.[33] The petitioner was in an all-male foster facility which did not allow her to wear skirts or dresses. Through her GID diagnosis, Doe was found to fit into the definition of disability, which state law defined as “physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function. . . .”[34]
Theories of Gender and the Law
Modern and post-modern queer theorists have added much to the discussion regarding the meaning and conception of gender, which can shed light on society’s attitudes towards cross-dressing and its regulation of gender and sexuality. Michael Foucault and Judith Butler are two of the most influential post-modern theorists. Foucault has written that gender is a social construction, while Butler has posited that cross-dressing is a performative concept.[35] Both agree that cross-dressing is a social construction that depends on the normative categories of man and woman. These normative behaviors change over time. For example, a woman who wears a tuxedo today is not necessarily a cross-dresser because “fashions and gender-normative dress codes have changed.”[36]  
Butler has also theorized that activities like dressing in drag can challenge gender stereotypes by removing them from their normative binary framework: “[T]hese activities can also be read as undermining and mocking the natural, fixed status of gender categories by exposing the manner in which they are performed.”[37] Butler’s theory that cross-dressing is a challenge to dominant behavior is supported by the typical response to gender-bending behavior such as laws that prohibit or target cross-dressing, and also in the violence that is still directed at individuals who blur gender lines.[38]   Although our modern laws do not specifically target cross-dressing, there are laws that appear to target a certain type of dress on their face, but are aimed at certain groups. For example, one might posture that laws aimed at low-slung pants or “gang apparel” are targeted at policing African Americans or other minority groups.[39] 
Other scholars have commented that cross-dressing creates a so-called “category crisis.” Marjorie Gerber writes in Vested Interests that cross-dressing challenges our binary notions of gender, whether or not these categories are constructed, biological, or cultural.[40]   She defines category crisis as: “a failure of definitional distinction, a borderline that becomes permeable, that permits border crossing from one (apparently distinct) category to another: black/white, Jew/Christian, noble/bourgeois, master/servant, master/slave. The binarism male/female . . . is itself put in question or under erasure in transvestism, and a transvestite figure will always function as . . . mechanism of displacement from one blurred category to another.”[41] Again, such theories provide insight into the subversive nature of cross-dressing or blurring gender lines, and accordingly, why laws have targeted such expression. 



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