March 15, 2023 | Reading Time: 4 minutes
Anti-drag laws are part of a long history of policing gender
And they won’t stop at drag, writes Mia Brett.
The anti-drag bills sweeping the nation are the latest in a long history of policing gender expression. While focused on supposedly protecting children from a particular kind of “adult performance,” the legislation is really about enforcing strict white, cis-heteronormative ideas of gender to serve nationalistic aims.
If successful this policing of gender expression will not stop at drag. It intends to control all who live outside of strict notions of the traditional binary of femininity and masculinity.
Anti-cross dressing laws gained popularity in the 19th century. Between 1845 and 1900, 34 cities in 21 states passed laws used to police crossdressing. Some jurisdictions, like the earliest law passed in New York in 1845, used anti-vagrancy laws to criminalize dressing in any kind of disguise.
These laws were used to target people dressed in ways “not according to their sex” (especially women wearing pants) by claiming those dressed in gender nonconformist ways were dressed in disguise. The first law that explicitly prohibited crossdressing was passed in 1848 in Columbus, Ohio.
In the 1850s, two women, Emma Snodgrass and Harriet French, made headlines all over the country for showing up places wearing pants and often getting arrested for doing so. Both were arrested under public indecency and anti-vagrancy laws in Boston, as well as in Cleveland and New York.
French justified her dressing in men’s clothing, saying it got her better wages. When champion Australian swimmer Anette Kellerman wore a bathing suit that showed her legs in 1907, she was similarly arrested for public indecency in Massachusetts because her clothing was not considered appropriate for women, even though it wasn’t gender nonconforming.
In her work studying anti-crossdressing laws, Clare Sears placed such laws in the context of larger projects to police gender performance, race, disability and the “public visibility of problem bodies.”
Anti-crossdressing laws were usually passed as part of anti-indecency provisions and were part of regulatory laws that policed public intoxication, profane language and swimming without appropriate clothing.
The anti-crossdressing laws were meant to target gender nonconforming people, but in the 19th century, that included feminists pushing for dress reform, “indecent” performances that might include drag, women seen as “fast” and who might dress in pants, and those who might identify as transgender today.
The logic used to underpin anti-crossdressing laws was also used to justify prohibiting disabled people from public space or anyone who was “diseased, maimed, mutilated,” or otherwise an “unsightly or disgusting object.” In San Francisco, public appearance regulations were also expanded to target Chinese immigrants and to specifically police Chinese sex workers.
In the 1940s, 1950s and 1960s, police arrested people for crossdressing around the country if they were not wearing at least three articles of clothing of their assigned gender.
No specific law requiring three articles of clothing ever existed, but instead police revived old outdated laws, like laws banning costumed dress to commit crimes, to target gender non conforming people.
While gay men and trans women were mostly arrested in bar raids, lesbians and trans men were often arrested while walking down the street, and police used the pretense of criminalizing crossdressing to commit sexual assault by checking people’s underwear to confirm their gender. Arrests for crossdressing mostly stopped after the Stonewall Riots in 1969.
The new anti-drag bills focus more on the performance than the clothing but they rely on the same normative desire to police gender performance, and race and disability, in public spaces as the laws concerning public indecency passed in the 19th century.
The bill that was recently passed in Tennessee doesn’t ban drag but restricts where it can be performed. It states that no “adult cabaret performance” can be performed on public property or in a location where the performance could be viewed by “a person who is not an adult.”
For the purposes of this bill “adult cabaret performance” includes “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest.”
This bill treats drag like a strip show which could also serve, to police, the parenting of anyone who participates in drag. While mostly focused on public performance, the restriction on a non-adult (so anyone under 18?) seeing the drag performance could also indict performances in someone’s home. It definitely wouldn’t allow drag brunch or drag story hour and sexualizes drag to the point of claiming drag is inherently harmful to children.
In Texas, a Republican has introduced a law similar to the abortion bounty hunter law to create a cause of action so private citizens could sue anyone who hosted or performed a drag performance in the presence of a minor.
Arizona’s proposed anti-drag bill makes it clear they are associating drag with sexual deviancy by forcing anyone caught performing drag in front of anyone under 15 to register as a sex offender.
Kansas’ bill would include drag in the crime of obscenity and defines drag as “when someone displays a gender identity different from the gender they were assigned at birth, and ‘sings, lip-syncs, dances or otherwise performs.’”
This definition would make trans performers indistinguishable from drag performers and would explicitly restrict trans people in public spaces as well. Ten other states have introduced laws to restrict the performance of drag if a minor is present.
The anti-drag bills might seem only concerned with drag performance mostly in bars and venues, which are without children anyway, but their mission and impact is very harmful and should not be downplayed.
Gender nonconforming performance or dress is not inherently sexual and should not be treated as such. Sexualizing drag and crossdressing necessitates public policing and will force gender nonconforming people out of public spaces or risk sex offender status.
This will result in treating gender nonconforming parents as abusive and give the state justification to take children away from loving families.
Anti-drag laws could be expanded to police the gender performance of cis-women and enforce rigid white cis-heteronormative public gender performance that will once again target any woman not deemed feminine enough, or man not deemed masculine enough.
Will women’s clothing also soon be policed if they are showing too much skin?
Will teachers have modesty codes so as not to expose children to bodies that could be deemed sexual?
It may seem restrictions on drag performance are a minor issue, but it’s just the first step that will lead to the rigid requirement of gender conformity.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.