Procedural Posture
The defendants were convicted of violating a Chicago City law that prohibited people from wearing the clothing of the opposite sex and intentionally concealing their biological sex. Prior to trial, the defendants tried to have the charges dismissed on the grounds that the law was unconstitutional, but that motion was denied. Their conviction was upheld by the Appellate Court and was taken to the Supreme Court, where the defendants contested the law on the grounds that it was overly broad and vague and that it violated the 1st, 9th, and 14th Amendments of the United States Constitution.
Facts
After leaving a diner, the defendants were arrested for wearing female clothing, make-up and hairstyles, including a dress, nylon stockings, heels, a wig, and a fur coat. At the police station the defendants had been forced to pose in various stages of undress, and it was noted that they were wearing garter belts and brassières. At trial the defendants testified that they were “transsexuals”, that they were both in psychiatric therapy in preparation for genital reconstruction surgery, and that they were required to dress and act as women in public settings as part of this therapy. Both defendants “thought of themselves as females”.
Issue
Whether prohibiting individuals from wearing clothing of the opposite sex and from concealing their biological sex was a violation of the United States Constitution.
Domestic Law
Chicago Municipal Code, Section 192-8 (“Any person who shall appear in a public place … in a dress not belonging to his or her sex, with intent to conceal his or her sex, … shall be fined not less than twenty dollars nor more than five hundred dollars for each offence”).
Constitution of the United States, 1st, 9th, and 14th Amendments.
Kelly v. Johnson, United States Supreme Court, 1976 (finding that citizens hold a liberty interest in personal appearance such that the State interest in regulating personal appearance is weighed against the degree of infringement).
MT v. JT, New Jersey Superior Court, United States, 1976.
Roe v. Wade, United States Supreme Court, 1973 (holding that there are “unspecified constitutionally protected freedoms”).
Reasoning of the Court
The Court relied on the cases of Roe v. Wade to establish that not all protections were explicitly specified by the Constitution, and of Kelly v. Johnson to establish the test by which a liberty interest in appearance was to be judged: namely, the State had to prove a need for the restriction that was greater than the individual’s right to liberty. The Court continued:
The notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with ‘values of privacy, self-identity, autonomy, and personal integrity that . . . the Constitution was designed to protect.
Next, the Court discussed when a personal interest in appearance could be infringed and noted that there was no relevant case law to guide it. Although personal choice in appearance was not a fundamental right, the Court still found that there must be some degree of justification for the “intrusion”. The Court rejected the reasons proffered by the city: protection from fraud, for the detection of criminals, to prevent washroom crimes, and prevent anti-social behaviour, as being without evidentiary support.
The Court looked to law review articles discussing the transgender marriage case of MT v. JT to hold that the defendants were not committing a crime when they were pre-operative “transsexuals” cross-dressing “for the purposes of therapy.” The Court also found that preventing them from making necessary preparations for gender surgery would be inconsistent with the legislative intent in granting permission for such surgeries. Finally, the Court held that the City had failed to provide any evidence that cross-dressing was harmful to society or that the ordinance itself protected morals.
The Court reversed the lower courts’ decisions and the case was remanded.
City of Chicago v. Wilson, Supreme Court of Illinois, United States (full text of judgment, PDF)
