… In a follow-up line of questioning towards Strangio, Barrett admitted that she never knew about the long history of cross-dressing laws, indicating that she may be convinced by Strangio that de jure legal discrimination was indeed part of transgender legal history.
Cross-dressing laws have long been used to target the transgender community. The first such laws appeared in 1843, prohibiting individuals from “wearing the apparel of the other sex.” These laws became tools of enforcement during police raids in the 1960s, particularly around the time of the Stonewall riots. Responding to Justice Barrett’s questioning on social media, the ACLU’s Gillian Branstetter highlighted a 1964 case challenging a cross-dressing law, quoting a newspaper report on the defense: “The defense submitted by the ACLU contends that it is unconstitutional to arrest as a vagrant a transvestite who has done nothing more than wear the clothing of the opposite sex.”
Collectively, [Barrett’s] discussion could make her a potential swing vote in the case.
It is also important to note that Justice Barrett has recently sided with liberals in choosing not to hear major cases on LGBTQ+ rights. Justice Barrett refused to reinstate Florida’s drag ban in November of 2023. She also refused to hear an appeal on Washington’s conversion therapy ban, allowing it to stand and joining Roberts and Gorsuch along with the liberals in that decision.
The outcome of this case carries immense weight for transgender rights, with many legal experts predicting the Court may lean towards upholding the Tennessee ban. However, it’s worth remembering that this same Court delivered the landmark Bostock decision, which protected transgender people from workplace discrimination using similar legal principles. As the nation awaits the ruling, likely to come early this summer, transgender people and their allies hold onto hope that at least two conservative justices will recognize the gravity of the case and join in affirming the fundamental rights of one of the country’s most vulnerable communities.
See also Chase Strangio’s op-ed in the NYT: https://archive.ph/1K3st