This Article offers a new set of arguments for transgender equality based on a little-known series of cases in which courts declined to enforce cross-dressing laws against transgender defendants. As shown below, the arguments brought by the defenders of these laws closely mirror the arguments brought today in favor of bathroom discrimination. The Authors discuss both the bathroom and cross-dressing debates in historical context, draw out the underlying reasoning in the two sets of cases,and argue that the reasoning that supports bathroom discrimination is as flawed as the reasoning behind criminal cross-dressing laws. The analysis also suggests that, just as the arguments for cross-dressing prohibitions have not withstood advances in public understanding of transgender people and their lives, neither will the arguments for bathroom discrimination.
In Part I, the Authors discuss the current state of the law, present personal testimonials of transgender people denied bathroom access, place the bathroom debate in historical context, and show how that debate evolved to the present day. In Part II, the Authors analyze the body of case law dealing with bathroom access and discrimination, outlining the types of arguments brought by anti-transgender advocates to justify withholding bathroom access: preventing fraud and crime, discouraging overt homosexuality, and enforcing gender norms. Part III analyzes the body of case law dealing with the cross-dressing laws, demonstrate that defendants used the same arguments being used today in the bathroom context, and show how the courts rejected these arguments. Part IV compares the two bodies of case law and offer new arguments for bathroom-access equality.
34 Seattle U. L. Rev. 133 (2010)