From Masquerade Laws to Bathroom Bills

The ugly legal history behind the opposition to California’s new trans rights bill.

Dozens of protesters gather in Times Square on July 26 over President Donald Trump’s decision to reinstate a ban on transgender individuals from serving in the military.

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In October, the California Senate passed a new law adding a third gender—nonbinary—to state-issued identification. The Gender Recognition Act (SB 179) additionally removes the requirement that petitioners present a physician-signed affidavit that they have undergone “clinically appropriate treatment for the purposes of gender transition” in order to change their gender marker. Arguing that equal treatment under the law requires that intersex, transgender, and nonbinary people have “state issued identification documents that provide full legal recognition of their accurate gender identity,” SB 179 is a victory for trans, gender nonconforming, and intersex people. As trans legal scholars have argued, binary gender categorization is routinized in administrative law and institutions in ways that cause specific harms. By waiving the medical affidavit requirement, the law ensures that the personal autonomy of gender minorities supplants the authority of clinicians. In doing so, it recognizes a principle of gender self-determination: that gender minorities are experts in their own gender experiences and identities.

Unsurprisingly, conservative political forces aligned against SB 179. Conservative opponents made two legal claims specifically concerning the “nonbinary” gender designation: that it would facilitate identity fraud and create undue Title IX burdens. Critics concluded that SB 179 endangers “women and children.” But SB 179 includes anti-fraud provisions, legal experts dispute that SB 179 has any bearing on Title IX, and the categories “women” and “children” include trans, nonbinary, and intersex people. The origin of these specious arguments against SB 179 lies, in part, in how the law has historically regulated gender authenticity and vulnerability.

From the mid-19th century to the mid-20th, more than 50 municipalities in the United States enacted local ordinances prohibiting appearing in public in “disguise” or “masquerade.” These laws construed the “wearing the apparel of the other sex” as fraud. Even when masquerade laws did not explicitly address gender, they were interpreted as applying to “cross-dressing.” In order to consider “cross-dressing” a criminal form of concealment, masquerade rules extended the law to determinations of “the types of bodies that belonged in the categories of man and woman.” Moreover, as Dartmouth professor Treva Ellison has argued, masquerade laws didn’t only discipline unruly genders; they were also used to criminalize communities of color.

Masquerade laws—like conservative opposition to SB 179 and transphobic rhetoric more broadly—treated the “truth” of gender as irreducibly binary and biological. This perspective, embodied in legal codes like masquerade laws and bathroom bills, equates being trans or nonbinary with being “fraudulent,” with concealing the “truth” of one’s “real” identity.

Historically, gender has appeared in the law through marking women’s purported inferiority and vulnerability, which is one reason the accusation of usurpation inherent in these masquerade laws is so important to understand. In 1905, the Supreme Court infamously ruled in Lochner v. New York that limits to working time violated the due process clause of 14th Amendment by undermining “freedom of contract.” Almost concurrently with Lochner, however, the Supreme Court found in Muller v. Oregon that “protective labor legislation” was warranted for women, whose “physical structure and the performance of maternal functions places [them] at a disadvantage.” The Muller decision construed women as uniquely vulnerable to harm and identified a “public interest” in protecting their well-being “to preserve the strength and vigor of the race.” In subsequent decisions, the court affirmed women’s vulnerabilities and the state’s paternal obligation to protect them, even including limitations on women’s contractual rights. The court’s reasoning didn’t rest on workers’ vulnerability to economic exploitation—which was rebuffed in Lochner—but rather on the sexist supposition that women were debilitated. This history is worth remembering when considering the opposition to SB179.

Similarly, the puzzling appeal of Title IX to SB 179 opponents—an antidiscrimination law often watered down by conservative judicial theorists—must be read through decisions like Muller, in which women were legally defined as vulnerable. Conservatives aren’t championing the antidiscrimination principles of Title IX; they are using Title IX (and legitimate feminist concern over its erosion) to smuggle sexist reactionary views about the fragility of women back into the law.

Understanding conservative legal arguments against SB 179 requires uncovering under-studied aspects of U.S. law regulating gender authenticity and gender vulnerability. Since the colonial era, codes regulating dress have been part of managing racial hierarchy, gender conformity, and class difference. These laws treated transgressing race and gender boundaries not only as “fraud”—passing oneself off as someone else—but often as “theft”—stealing identities that come with explicit and implicit power advantages. Contrary to conservative views, however, changing one’s identification to align with one’s gender isn’t concealing anything—it brings identifying documents into line with actual identity. Far from enabling “fraud,” SB 179 eliminates the fraudulence of fixed-at-birth binary gender classification for gender minorities.

The conservative interpretation of Title IX isn’t our only option. Title IX does not define women as biologically disadvantaged, but rather prohibits sex-based discrimination (e.g., redresses sexism’s historic and ongoing harms) without assuming that vulnerability is innate to womanhood. Yet, the conservative appeal to Title IX dovetails with what women of color and trans feminists like Reina Gossett, Victoria Law, and Mariame Kaba call “carceral feminism.” Here, conservatism and transphobic versions of feminism converge on the narrative that cisgender women are threatened by the mere presence of gender minorities or the expansion of antidiscrimination law to cover us.

SB 179 may not create a Title IX burden under current interpretation, but it should. Although SB 179 states that gender minorities face “frequent discrimination, harassment, and violence in areas of life including education, employment, health care, and law enforcement,” merely changing ID laws cannot remedy those substantive harms. Gender vulnerability is constituted in myriad ways. Just as women—trans and cis alike—deserve legal guarantees of nondiscrimination on the basis of gender, so do transgender men and nonbinary, intersex, and gender-nonconforming people. SB 179’s opponents attempt to pit cisgender women’s rights against those of gender minorities: Let’s not let them.