Chapter seven: Gender Expression and Cross-dressing

En español

Cross-dressing laws can be challenged on various grounds. One’s choice of attire may be described as an expression of individual liberty and autonomy, or an expressive statement protected under the right to freedom of expression. Cross-dressing may also be considered an element of trans identity protected under non-discrimination and equality guarantees. Early cases, however, dealt with the textual vagueness of laws that criminalised dressing in clothing of the opposite sex.

One way in which law has played a role in enforcing gender norms is by prohibiting cross-dressing. Sumptuary laws were common in medieval Europe, Elizabethan England and colonial North America and served to regulate public attire according to occupation, class and gender.^[1] Colonial systems exported dress regulations to many countries around the world. Contemporary sumptuary laws, known as cross-dressing laws, have been used to target individuals who transgress gender roles, whether they are gay, lesbian, transgender or straight. In Sudan, for example, laws prohibiting indecent or immoral dress have been used to punish men who wear women’s clothes as well as women who wear trousers and male models who wear make-up.^[2] In Nigeria, laws on indecent dress have been used to fine and imprison cross-dressing men.^[3] In Guyana, it is a crime under section 153 of the Summary Jurisdiction (Offences) Act when “a man, in any public way or public place, for any improper purpose, appears in female attire, or being a woman, in any public way or public place, for any improper purpose, appears in male attire”. After a series of arrests of transgender persons, activists there have filed a constitutional complaint.^[4]

Cross-dressing laws can be challenged on various grounds. One’s choice of attire may be described as an expression of individual liberty and autonomy, or an expressive statement protected under the right to freedom of expression. Cross-dressing may also be considered an element of trans identity protected under non-discrimination and equality guarantees. Early cases, however, dealt with the textual vagueness of laws that criminalised dressing in clothing of the opposite sex.

In the 1970s, US courts began to hear challenges to such laws on both freedom of expression and vagueness grounds. In City of Columbus v. Rogers, the Ohio Supreme Court heard the appeal of a man who had been convicted under a city ordinance that prohibited individuals from appearing in public in dress “not belonging to his or her sex”.^[5] Taking account of contemporary changes in the manner and style of dress, the Court found the ordinance unconstitutionally vague, because clothing for both sexes was “so similar in appearance” that a person “of common intelligence” might not be able to identify any particular item as male or female clothing. This logic was subsequently applied to strike down cross-dressing laws in a number of cities.^[6]

In the case of City of Chicago v. Wilson et al., the Supreme Court of Illinois found a very similar law unconstitutional on different grounds. Relying on privacy cases considered by the US Supreme Court, namely Roe v. Wade and Griswold v. Connecticut, the Illinois Court concluded that individuals had a “constitutional liberty interest” in their choice of appearance. It connected this liberty interest with the values of privacy, self-identity, autonomy, and personal integrity. The State attempted to justify the ordinance by asserting its interest in preventing crime. The Court rejected this argument. The two defendants were “transsexuals . . . undergoing psychiatric therapy in preparation for a sex-reassignment operation”. There was no evidence of “deviate sexual conduct or any other criminal activity”. In the absence of evidence, the Court could not “assume that individuals who cross-dress for purposes of therapy are prone to commit crimes”. Following Wilson, eight transgender plaintiffs brought suit in Texas challenging a cross-dressing law under which they claimed they were threatened by prosecution. They argued that, as “transsexual plaintiffs who cross-dress in preparation for sex-reassignment surgery, they had a liberty interest in their personal appearance”.^[7] The Court agreed, finding the ordinance unconstitutional.

Later cases have used the right to freedom of expression to protect an individual’s choice of dress. In Doe v. Yunits, a teenager, who had been identified as male at birth and had been diagnosed with gender identity disorder, brought suit against her junior high school, which had repeatedly expelled her from class for wearing girls’ clothes. The school argued that the presence of a boy wearing girls’ clothes disrupted the learning environment. The Court held that the teenager’s style of dress was a form of expression. Through her choice of clothing, she expressed her female gender identity. The clothes themselves were not distracting and a female student would not have been disciplined for wearing them. Preventing the student from wearing certain clothes was therefore a suppression of protected speech.

McMillen v. Itawamba County School District concerned a lesbian teenager who wished to wear a tuxedo to her school prom. In this case too the Court relied on the right to freedom of expression. The student argued that wearing a tuxedo had the “intent of communicating to the school community her social and political views that women should not be constrained to wear clothing that has traditionally been deemed ‘female’ attire”. The Court agreed that wearing a tuxedo was a form of expressive conduct protected by the First Amendment to the Constitution.

In Thailand, the Chiang Mai Administrative Court examined the issue of gender non-conformity in terms of discrimination. In Teerarojjanapongs I and Champathong II v. Governor of Chiang Mai Province, a regulation prohibited individuals from appearing at the annual flower festival parade in clothing that expressed “sexual deviance”. The plaintiffs argued that the law would prevent transgender people from participating in the parade. The Court found that, under Article 30 of the Thai Constitution, all persons were equal before the law and enjoyed equal legal protection. This protection extended to individuals who dressed in a manner contrary to their gender, or, in the Court’s words, “persons who have sexual diversity”. Their right to cross-dress was thus viewed as an integral aspect of their identity. The approach of the Thai court is similar to the one Sweden adopted: its non-discrimination law prohibits discrimination on grounds of both transgender identity and expression, and the latter is described as dressing in a way that indicates one’s belief about “belong[ing] to another sex”.^[8]