“We don’t have a history of de jure discrimination against transgender people, right?” Supreme Court Justice Amy Coney Barrett asked during the Dec. 4 oral arguments in U.S. vs. Skrmetti, a case involving access to gender-affirming care for minors. Then-Solicitor Gen. Elizabeth Prelogar, arguing for such care and against a Tennessee law denying it, responded, “So I think you may be right that … historical discrimination against transgender people may not have been reflected in the laws.” She later tried to recover, but the damage was done.
One criterion for being recognized as a protected class under the equal protection clause of the Constitution is that a group must have a demonstrated history of legal discrimination, so it is important to set the record straight. As three scholars of U.S. trans legal history, we know there is a long history of de jure discrimination against people we would now consider transgender. Indeed, we believe that animus against gender nonconformity generated legal regulatory systems that have shaped American history and constitutional law.
The most obvious and pervasive examples of de jure discrimination against transgender people are the long-standing anti-cross-dressing regulations that blanketed the United States for more than a century. Starting in St. Louis in 1843 and continuing through the 1970s, more than 70 municipalities across the country criminalized appearing in public “in a dress not belonging to his or her sex,” wearing a mask in public with the intent to conceal or deceive or “female impersonation.” Jeanne Bonnet was arrested numerous times in San Francisco in the 1870s for wearing male clothes, just one example of a trans person who was repeatedly penalized under these laws.
Even in cities where cross-dressing was not explicitly prohibited, municipal police departments had broad discretion to use laws prohibiting other street crimes such as vagrancy, disorderly conduct and loitering to harass gender-nonconforming people. For example, in 1916, a New York magistrate sentenced a trans woman named May Miller to up to two years in the workhouse for disorderly conduct, as punishment for her “incorrigibility in female masquerading.” As is true today, these laws were selectively enforced, with gender-nonconforming people who did not pass and/or were nonwhite, disabled or poor being targeted most.
One of the first drag queens in American history was a victim of transphobic policing and anti-trans laws. After the Civil War, William Dorsey Swann, who was born into enslavement, joined a thriving Black queer scene in Reconstruction-era Washington, D.C., where he hosted elaborate cross-dressing parties and referred to himself as a “queen of drag.” In 1896, police raided a drag ball and arrested Swann and several others. Swann was charged with keeping a “disorderly house,” a common euphemism for a brothel, and was sentenced to 300 days in prison. President Grover Cleveland refused to pardon him, and the attorney general described the “queen of drag” as having conducted “the most horrible and disgusting offences known to the law.” Swann’s case is but one of hundreds of examples of anti-cross-dressing restrictions that took place between the 1850s and the 1980s, according to our research.
Military regulations, liquor licensing boards and prison administration have also explicitly discriminated against gender-nonconforming and trans people. After Prohibition, many states established regulations that prevented bars and taverns from serving gender-nonconforming customers and other people whose very existence had been deemed “disorderly.” Liquor regulators and military officials — concerned with potential “vice” in their ranks — joined police in frequent roundups throughout the 20th century. In the 1930s, for example, military inspectors raided a “house of ill repute” run by the famous transgender madame Lucy Hicks Anderson. Anderson was convicted of perjury for lying about her gender on her marriage certificate and fraud for collecting a pension as a soldier’s wife, essentially being punished for living as a married woman. She was sentenced to one year in county jail, 10 years of probation and a large fine.
Many other federal programs also discriminated against transgender people. Immigration officials considered gender nonconformity a kind of “moral turpitude,” rendering trans people ineligible to legally enter the country until the 1990s. Transgender people were explicitly written out of the Americans with Disabilities Act of 1990, which still excludes transgender coverage today. Indeed, gender-affirming care was not covered by Medicare until the mid-2010s and many states still will not cover transgender-related procedures under Medicaid. Trans people have also been regularly denied accurate identity documents, such as birth certificates, driver’s licenses, passports and Social Security cards. Except for a brief period at the end of the Obama administration, transgender people were explicitly prohibited from enlisting in the armed forces from the 1960s until 2021. And from the 1960s to 2020, equal employment administrators and judges consistently interpreted federal employment law to exclude transgender people, reading their existence out of the legal definition of sex itself.
These examples barely scratch the surface of U.S. transgender legal history, but they demonstrate that gender-nonconforming people have faced widespread legal discrimination, showing us how laws aimed at enforcing gender norms have prevented trans and gender-nonconforming people from participating equally in public life for well over a century.
Getting it right is essential for understanding our past and protecting trans rights in the future. The Supreme Court may not decide Skrmetti based on the history of de jure anti-trans discrimination. However, Justice Barrett’s questions should sound the alarm that the issue is likely to come up again. Indeed, the Trump administration is already attempting to define transgender people out of existence. If we want legal discrimination to be consigned to the past, it is imperative that we study and share these histories.
Brianne Felsher is completing a J.D.-PhD in jurisprudence and social policy at UC Berkeley. Shay Ryan Olmstead is a legal historian and lecturer of women’s, gender and sexuality studies at Rochester Institute of Technology. Kate Redburn is a legal historian and director of the Center for Gender and Sexuality Law at Columbia Law School.
