Countless communities have historically been targets of the American legal system, whether black, brown, indigenous, gay, or the intersection of any identity. Genderqueer individuals are no different. The US has a long history of restricting LGBTQ+ freedom, especially when it comes to transgender and gender non-conforming people. The progression of this discrimination becomes more coded over time. American law has done little to integrate these individuals and their values into the legal system in a non-discriminatory way. In fact, the law has only narrowly defined transgender. The term transgender has been defined by law as “the state of a person’s gender identity (self-identification as male or female) not matching their assigned sex at birth.” It has yet to put a definition on genderqueer, non-binary, gender fluid, gender non-conforming, and more. It is important to define non-legal LGBTQ+ terms for understanding. Gender non-conforming is an umbrella term that describes individuals who reject traditional gender values and express themselves beyond the male/female categories. Gender non-conforming is an expansive term that includes transgender, non-binary, gender fluid, and more communities. Genderqueer is an alike term that highlights a fluidity in gender identity. Gender identity is becoming an increasing part of international culture and needs to be addressed by the law in order to avoid the continuous othering of this community.
The belief that gender non-conforming individuals are a new cultural subgroup blatantly undermines history. One of the first cases regarding queer issues passed in the American colonial court system in 1629. Thomas Hall, an individual that now would be determined to be intersex, was concerning townspeople with their dress and expression, as they wore both masculine and feminine clothing. The local Jamestown court took up the issue and ordered Hall to “wear both a man’s breeches and a woman’s apron and cap.” While this decision may seem progressive for the time, the court eliminated Hall’s ability to express the gender identity they wish and made them a public joke. Research categorizes this case as a push to mock gender nonconformity rather than distinguishing a legal issue. Centuries before this, anti-queer expression bills had their roots in sumptuary laws. Sumptuary laws are restrictions on personal dress and expressive ownings in defense of religion and morality. These laws were common across Europe and its territories from the Middle Ages to the founding of the American colonies. Sumptuary laws evolved into the means of keeping society hetero and cisnormative.
Sumptuary laws were no longer prevalent after American independence in 1783 which left room for new political action. Over the 19th century, 28 known cities and municipalities passed anti-cross dressing laws. Columbus, Ohio was the first known area that criminalized individuals “in a dress not belonging to his or her sex” in 1848. Other discriminatory laws that followed often were in response to women and queer people taking a more active role in society. During the Civil War, Memphis, Tennessee passed laws that barred any cross-gender expression. According to researchers, many women dressed as men to fight in the war, and legislators saw this as an attempt to eliminate the patriarchal status quo. From 1841 to 1899 certain districts within states like Illinois, Delaware, New Jersey and more soon reacted to new societal changes in the same way. These laws often described those who went against their rationale as “perverted,” a move that villainized the innocent. Gender non-conforming folk became gender outlaws, a term coined by gender theorist Kate Borenstein.
Anti-queer expression laws shifted in the 20th century from their earlier counterparts by focusing on only AMAB (assigned male at birth) individuals. Several cities such as Detroit, Denver, and other cities outlawed men to “dress not belonging to their sex” in the 1950s. Researchers today are still trying to understand why AMAB individuals were restricted when AFAB (assigned female at birth) individuals were not. Yale law professor Bill Eskridge theorizes that gender deviance is less accepted in AMAB communities because of stricter societal expectations. In the district court case, People v. Archibald (1968) a queer individual was found guilty of vagrancy and disguise when they were stopped by police for wearing a dress and makeup. The district attorney labeled Archibald as a vagrant, or homeless person when the individual was in fact housed. Charges of vagrancy were common against queer people and were often used to build cases. Singular cases like the one above were common across the United States. The 20th century brought intense standoffs between genderqueer people and the law. Police began enforcing discriminatory disguise laws in large queer settings. Whether it be drag shows, gay bars, or trans hangouts, police began raiding queer spaces in order to publicly mock queer people. LGBTQ+ people were arrested and charged with countless petty crimes just for their existence. The 1900s at the same time recognized the marginalization of gender non-conforming individuals. The first known anti-cross dressing law established in Columbus, Ohio was overturned in 1974, more than 120 years later. That same year the Ohio Supreme Court overturned a similar ordinance finding the law was unconstitutional. Not because of its restrictions on expression, but because the law became too vague for current apparel. The court even found the issue “debatable.”
Modern history sadly finds an all too similar path for genderqueer people, through more coded attempts to chip away at the dignity of LGBTQ+ communities. Below are just a handful of the legal complications plaguing queer people, like restricting their right to health, societal participation, and even life. The legal value of a genderqueer person’s life has been in question since the adoption of the trans panic defense. The trans panic defense is a legal strategy used to argue that when the defendant learns of the queer plaintiff’s biological sex, the defendant is “provoked into a heat of passion, causing them to lose their self-control.” Cases where this defense is employed typically involve murder, physical or sexual assault, and more. When the trans panic defense is successful, the jury can completely acquit the defendant of their crimes or lessen the charges. The origin of this defense begins in the 1960s and 70s where the homosexual panic defense became a common tool in cases connected to the murder of gay men. Just like the trans panic defense, this legal strategy relies on rhetoric that the existence of a queer individual was so triggering that it sparks “a temporary violent psychotic reaction.” About 1/3 of cases that use the trans panic defense have the charges reduced or completely dropped. The usage of any LGBTQ+ panic defense has been outlawed in 11 states and Washington, DC. However, this has not stopped the legal strategy. This legal justification for violence towards queer individuals is still alive today, with cases as recent as 2019.
Beyond the right to life, queer people are facing attempts to block their livelihood across the nation. 2020 and 2021 have seen a wave of anti-trans and gender non-conforming bills. This year alone, as of March, 93 anti-trans and genderqueer bills have been up for debate across the nation. 18 U.S. state legislatures have introduced or passed bills that would make it a crime for youth to seek out gender-affirming health care. Bills in Alabama, Florida, Georgia, and other states could serve punishments like ten years in prison for doctors and parents who try to help their queer child transition. Nearly half of trans and gender non-conforming youth report attempting suicide because of their gender dysphoria. Access to proper healthcare for queer folk is a life-dependent issue. In addition, 27 states have initiated legislation that bars trans and gender non-conforming athletes from competing in their respective sports. Florida’s state legislature recently passed a bill that would allow schools to subject trans athletes to “genital inspections” before letting them compete in any sport. These bills are dehumanizing at their best.
It is important to look at proposed changes to the law that aims to protect genderqueer communities. In 2021, there are “very few federal protections for transgender or non-conforming people” which leaves a lot of leeway for states to enact harmful laws. In June 2020, the Supreme Court incorporated queer protections into existing law. The court ruled that LGBTQ+ people are protected from workplace discrimination under Title VII of the 1964 Civil Rights Act. This is just the beginning of protecting genderqueer people. In 2019, the Senate Judiciary Committee introduced the Gay and Trans Panic Defense Prohibition Act. The bill would ban the use of LGBTQ+ panic defense strategy. However, the bill has not made any progress since its introduction in June 2019. Finally, the most encompassing bill proposed to protect LGBTQ+ communities is the Equality Act. The House passed the Equality Act in February of 2021. The bill would prohibit “discrimination based on sex, sexual orientation, and gender identity” in public sectors like education, employment, housing, and more. It is still unsure if the bill could be made into law because the passage in the Senate would be difficult. The Republican Party stands firmly against the Equality Act because of concerns for “religious freedom.” However, they have yet to release an alternative bill.The freedom of trans and gender non-conforming people has historically been restricted. It is important to learn about this history to understand why the US still has difficulty protecting these communities. The law has rarely been an advocate for queer people and modern attempts to reverse that have many political obstacles.