Welcome to season one of The Long Transition, where I’m chronicling the history of anti-crossdressing laws. You can read the posts in this series on their own, but I also recommend the whole arc. New installments come out biweekly.
In 1876, Ann Casey was arrested in Memphis, Tennessee after a local woman swore Casey was a man “wearing the dress of the opposite sex.” As the Memphis Daily Appeal reported it, the accusation came as a genuine surprise. Casey was well known to both the police and the Recorder’s Court, having been arrested on charges of vagrancy and prostitution several times before. In fact, just four months earlier, she had been released from a year-long sentence after the prison doctor learned that she was pregnant. No one would have suspected her of being male.
At the city stationhouse, Casey was told that several doctors were on their way to verify her physical sex. As the Appeal told it, she “became very much excited” at the news, “and, seizing a large butcher-knife lying on a bench near the cook, he attempted to stab himself in the left breast” rather than submit to the examination. It took several people’s intervention to stop Casey, and the doctors later confirmed that she was physically male.1
Casey was part of a generation of black women charged under municipal anti-crossdressing laws in the aftermath of the Civil War. The escalating criminalization they endured shows us the remarkable origin of anti-transgender politics in the United States—150 years ago. The political battle over Reconstruction and the policing system that grew into an arm of Jim Crow created the modern criminalization of crossdressing. It also helped to create the enduring association between transgender women and deception.
As we explored in the previous installment in this series, local ordinances prohibiting crossdressing arose in waves beginning in the 1840s. The first of these laws were adopted mainly in the Midwest and Deep South. But they were rarely, if ever used. Passing women and men (people who dressed in order to actually live as another sex) were not singled out or targeted until several decades later.
To understand this historical change, consider the difference between Ann Casey and two free black women of an earlier generation. When Mary Jones was arrested in New York City in 1836 for stealing a white man’s wallet, she was inadvertently outed as male in a tussle with a police officer. Jones, who relied on sex work to make a living, was satirized in the press as “the man-monster,” but the fact that she had become a woman by transition was not the crux of the story spun out of her arrest. Pro-slavery partisans sensationalized Jones as proof that the abolition of slavery would lead to sex across the color line. The ridicule of her male body draped in fine women’s clothes actually fit into a much broader libel of free black New Yorker’s fashionable participation in the city’s social life. In short, she was not exceptionalized.2
Consider also Mary Ann Waters, a free black woman who was arrested in Baltimore in 1851. She, too, was a sex worker, but the arresting officers detained Waters on the suspicion that she was a fugitive slave. They seemingly could not conceive that Waters might have dressed as a woman for any other reason because they took out an ad seeking her slaveholder to come forward and claim her. The historical record suggests that no one ever came forward, because, as Waters herself claimed, she was free. Even though she had dressed as a woman to transition, it didn’t register to police or the law.3
What changed after the Civil War? Well, for one thing, the determination with which freedwomen and freedmen embraced liberty and political equality pushed Republicans in Congress to adopt a strong program of Reconstruction. The Fourteenth and Fifteenth Amendments to the Constitution enshrined, among other things, birthright citizenship, the equal protection of the law, and the right to vote. The federal government also took extensive new roles in the former rebel states, using the weight of the army and government agencies, like the Freedmen’s Bureau, to restore the rule of law, build schools and hospitals, bring formerly enslaved people into the free labor system, and defend some of their rights—at least in theory. As historians have detailed, the greatest successes of Reconstruction in multi-racial democracy were built from the bottom up, not the top-down.4
The reactionary forces seeking to end Reconstruction, and restore white political and economic domination, regrouped and redoubled their efforts in the 1870s. The infamous Compromise of 1876 is the conventional end date for Reconstruction. But the former Confederate states also passed an avalanche of restrictive laws—a new round of Black Codes—which sought, among many other things, to disenfranchise African Americans, restrict their movement, and rig working conditions to restore as many elements of the antebellum era as possible. Not all these schemes were successful, but an enduring cornerstone of the attack on black political and economic rights was policing and incarceration.5 In cities where thousands of freedwomen and freedmen relocated during and after the war, police escalated the criminalization of black social life and labor through every means possible, including vagrancy and misdemeanor laws. It was in this massive push that once-obscure laws against crossdressing acquired new value.
Arrests for crossdressing increased significantly in the decades following the civil war, and cities throughout the entire country began to update their municipal codes to prohibit crossdressing.6 Unlike in the antebellum era, black women who had transitioned were now arrested explicitly for their street appearance, rather than being inadvertently outed or pursued on other charges.
In other words, the police learned how to clock them.
The results were catastrophic and life-defining. Ann Casey had been born in New Orleans sometime in the 1840s, enslaved to a ship’s captain. Once emancipation came, she set out to embrace freedom far away from her memories of enslavement. But she found it difficult to stay anywhere more than a few years because the new intensity of urban policing made her vulnerable to arrest both for prostitution and crossdressing. Casey tried, for a time, to make a life in San Antonio, Texas, before being run out of town after serving a jail sentence for crossdressing. In St. Louis, she ended up in the city jail for forty days on the same charge (recall that St. Louis was the first city in the country to criminalize crossdressing). After that, she was determined to stay mobile to avoid more arrests. Casey began splitting her time between Memphis and her hometown of New Orleans. In periods where prostitution brought too much attention on her, or she wanted a reprieve, she also tried working as a chambermaid in small towns in the Mississippi Valley. But she was eventually arrested in New Orleans in the late 1860s and was sentenced to fifty-one days in jail. And then, in 1876, she found herself locked up yet again in Memphis.7
Casey’s restless life in the shadow of crossdressing laws shines a different light on the Daily Appeal’s sensational account of her attempt to stab herself in the jailhouse. It’s not so hard to understand why she would have rather died than go through the experience of being probed by white men and charged with crossdressing yet again.
Casey’s life epitomizes how black women were targeted by crossdressing laws and presented to the public as criminal deceivers for having transitioned. They were also subject to degrading and corrective punishment for their male femininity. Casey, the Appeal told its readers, “has a feminine voice, wears ear-rings, can dress his black hair as an expert hairdresser, and is not ignorant about such matters as pin-backs, etc.” But the paper mentioned her skill at passing only to emphasize that “he will have but little use for his knowledge of the toilette for some time to come, as he was yesterday evening returned to the [penal] island, where he will be presented with a pair of unmentionables and a hoe, and shown how to raise cotton and corn.” Male labor would perhaps undo her womanhood, the paper implied, but at the very least the humiliation sent an unmistakable message that the freedom exercised by black women and men in cities like Memphis was subject to arbitrary and totalizing suspension. The freedom to reinvent oneself as a woman was a powerful target in sending that message.8
Francis Thompson was arrested under the same Memphis law as Casey a few months later. She, however, was already famous, having given key testimony to Congress in 1866 after the Memphis Riots, during which a mob led by the city’s all-white police force had set fire to the city’s preeminent black neighborhood, killing residents in the streets. Thompson was one of five freedwomen to testify under oath that white men had raped them during the riot. Testifying to the depravity of reactionary Southern violence had helped to secure the congressional passage of the Fourteenth Amendment later that year, tying Thompson directly to one of Reconstruction’s most important constitutional transformations.9
Once she was examined by doctors and pronounced male, conservative partisans flew into a rage, accusing her of having lied to Congress and, by extrapolation, proving that Reconstruction was based on lies. Thompson was also given a harsh and corrective punishment designed to destroy her womanhood, sentenced to the chain-gang. Because she has a permanent disability in one foot and relied on crutches to get around, the forced labor took a devastating toll on her health, and she died a few months after completing the sentence.
The Memphis police also sent Thompson to have her likeness sketched for the “rogue’s gallery.” An early form of police intelligence, the gallery was a collection of images depicting notorious criminals that could be shared across jurisdictions. That way, if someone were to skip town after serving a sentence, they would have a much harder time starting over as a stranger. It was, very basically, an early form of the mugshot. The artist depicted Thompson twice, however: once in men’s clothing, and once in women’s. The idea was to give police in other cities a sense of how to spot her whether she was cross-dressed or not, but effect ended up being much more profound. The images reinforced the idea that passing women were inherently deceptive, having one true and one false public appearance. And the pictures of Thompson made it into the newspapers and magazines, reaching people throughout the country.
If you spend time examining daily American newspapers from 1870-1900, you’ll find hundreds, if not thousands of stories mentioning people dressed as the opposite sex. Very few were about people who had transitioned, however. They mainly described alleged criminals who cross-dressed as a form of disguise, hoping to sneak by neighbors, or police. The popular association between dressing as the opposite sex and criminal disguise had grave, if unintended, consequences for passing women and men. If they were found out, the first assumption of many Americans would have been that they dressed that way to conceal their true identity, or to get away with something unsavory.
And yet, the targeting of black passing women in the battle over Reconstruction charged that general association with a political significance it would not have otherwise had.
Black women faced the harshest scrutiny from police in the application of crossdressing laws. In fact, when the Editor Gazette reported on Thompson’s arrest, the paper contrasted her with “a black woman in Clarksville who wears male attire, hat turned up in front, pantaloons in boots, and who chops woods and makes rails in preference to washing, ironing, etc.” Passing as a black man was no equal sin to Thompson’s. The Gazette emphasize that this particular man “is said to swing the liveliest axe in Johnson County, could never be distinguished by her appearance from a man, and although working together with men, bears an excellent character.”10
In the following decades, the criminalized deception projected onto black women like Casey and Thompson would spread, making everyone who transitioned more vulnerable. Police deliberately scrutinized the public appearance of anyone who might be suspected of crossdressing, and shared mugshots across jurisdictions, changing law enforcement practices as far away as San Francisco.11 What this tells us, most immediately, is that anti-transgender political campaigns are not a recent phenomenon. (In fact, they didn’t need the concept of “transgender” at all. The target was the practice of transition.) But this history also tells us that anti-transgender politics did not arise spontaneously out of moral opprobrium for gender non-conformity. It was the street-level attack on black political freedom and mobility that produced the first clear pattern of anti-transgender discrimination in the 1860s and 1870s.
I find this historical insight immensely clarifying. It suggests that the work of lawyers to read “transgender status” into the Equal Protection Clause is not mere twenty-first century tinkering. If the link between passing as a woman and criminal deception was an effect of the reactionary attack on black freedom and political equality in the post-Civil War South, then transgender rights are not only a special interest or wonky elite creation, as they are so often painted by their opponents.
If the arrest of transgender people for crossdressing were simply a byproduct of the old association between dressing as the opposite sex and criminal disguise, then the pattern of disproportionate policing affecting black transsexual women would not have remained durable into the twenty-first century, while the old idea of criminal disguise has worn off.
In the next installment in this series, we’ll jump ahead to the twentieth century and consider how this Reconstruction-era history helps us make sense of the policing regime it catalyzed. Almost a century after black women like Casey and Thompson were arrested, the first legal challenges to crossdressing laws were launched.
“A Petticoated Fraud,” Memphis Daily Appeal, 1876.
See Jules Gill-Peterson, A Short History of Trans Misogyny (Verso, 2024), 67-69.
Jesse Bayker, “Before Transsexuality: Transgender Lives and Practices in Nineteenth-Century America,” PhD dissertation, Rutgers University, 2019, 34 fn31.
For an introduction to histories of Reconstruction, you might consult Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (Harper Collins, 1988); Manisha Sinha, The Rise and Fall of the Second American Republic: Reconstruction, 1860-1920 (Liveright, 2024); and the classic study by W.E.B. DuBois, Black Reconstruction in America (1935).
William Cohen, At Freedom’s Edge: Black Mobility and the Southern White Quest for Racial Control, 1861-1995 (1991), 201-247.
William N. Eskridge, Gaylaw: Challenging the Apartheid of the Closet (Harvard University Press, 1999), 27-28.
“A Petticoated Fraud.”
“A Petticoated Fraud.”
Hannah Rosen, Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (University of North Carolina Press, 2009), 236.
“A Trip to Memphis,” Editor Gazette, July 12, 1876.
See Clare Sears, Arresting Dress: Cross-Dressing, Law, and Fascination in Nineteenth-Century San Francisco (Duke University Press, 2015), 78-81.
Eagerly awaiting Parts IV and V! Hope all is well.