The United States legislature has acted and will continue to act in ways that that will affect the transgender and non-binary communities in damaging ways. The outdated language they use has set a precedent for how the legal system interprets and constructs laws and policy around trans rights today. The trans community is fighting for more inclusive language5 through fashion, garments, and stores in an industry that is notoriously gendered, yet the legal system is not getting the hint. In this article, I give background information and theory on the transgender community and I argue that there is a direct connection between crossdressing laws of the past, which have led to precedent that impedes the transgender community’s progress to equality, while also creating pressures to pass. I explore the strategies trans people have used to fight back and how the judicial system has hindered the trans community’s ability to access legal rights, and medical necessities. Finally, I discuss what steps the trans community can take going forward in fighting against gender essentialism.
Lee Clark is a student at CUNY School of Law, and bartender at Happyfun Hideaway in New York City. Lee Clark is an out and proud trans person, who uses they/them pronouns. They would like to thank their partner Waine Thoma, Coco Wheeler, Third Fernandez, Katherine Dennis, Sophie Cohen, Malita Picasso, and all the people who have inspired me and help shape this article. This is a paper originally written for Ruthann Robson’s Fashion and the Law class at CUNY Graduate Center.
Recommended citation: Lee Clark, The Pressures of Passing, Reinforced by Precedent, 22 CUNY L. REV. F. 17 (2019).