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The Criminalization of Gender Nonconformity
Pro-transgender rights activists with the Gender Liberation Movement protest in the House Cannon building and face subsequent arrests on December 5, 2024 in Washington, DC. Photo Credit: Maansi Srivastava for The Washington Post via Getty Images
In the United States today, being transgender can carry legal consequences. Not because transgender people are causing harm, but because they do not conform to what the state says gender should be.
On February 18, 2026, Kansas lawmakers passed SB 244, which restricts access to bathrooms and locker rooms based on sex assigned at birth and allows private citizens to file lawsuits against transgender people for at least $1,000 in damages if they believe they shared a facility with them.[1] The law does not require harm but allows legal action based on the mere presence of a transgender person in a space someone else believes they should not occupy. It turns everyday interactions into potential lawsuits and encourages people to monitor and report each other.[2]
Florida has taken a similar approach but with direct criminal consequences. Under its bathroom restrictions, a person who uses a facility designated for the “opposite sex” can be charged with trespass if they refuse to leave when asked by an authority figure.[3] The law applies to government-owned buildings, which means that using a restroom in a school or public facility can lead to criminal charges. At the same time, Florida has moved to prevent transgender people from updating the sex marker on their driver’s licenses and has created uncertainty about whether existing documents could expose people to fraud accusations for “misrepresenting” their identity.[4] In both cases, the state is not regulating harmful conduct, but rather people’s ability to live in accordance with their gender identity.
These laws are part of a broader pattern. Montana, Wyoming, South Dakota, Utah, Kansas, Texas, Arkansas, and Florida all restrict transgender people from using bathrooms consistent with their gender identity in government-owned spaces, including schools and public buildings. In Kansas, Utah, and Florida, those restrictions are tied to criminal penalties.[5]
This does not just affect transgender people.[6] Bathroom bans require constant surveillance of bodies. Anyone who does not conform to narrow expectations of what a man or woman is supposed to look like becomes vulnerable. These laws invite scrutiny, and that scrutiny does not stay neatly contained. It spills over, targeting cisgender people who are perceived as “out of place” as well.[7]
This is happening alongside a wider legislative effort. Across the country, lawmakers have introduced dozens of bills targeting transgender people’s access to public accommodations alone.[8] These measures create a legal environment in which transgender people are more visible to the state, more restricted in where they can go, and more exposed to enforcement simply for existing.
Recent federal guidance suggests that visa applicants may be required to prove their sex assigned at birth and could face denial or permanent ineligibility for “misrepresenting” their sex if their gender identity does not align with that designation.[9] That means being transgender can be treated as a form of fraud in the context of immigration.
None of this is new. Laws regulating gender expression have a long history in the United States. By the mid-twentieth century, at least seventy municipalities had laws banning cross-dressing, often using language that criminalized appearing in public in clothing “not belonging to [one’s] sex.”[10] These laws were widespread, appearing in large cities and small towns across the country, and they were enforced as part of ordinary policing.[11] In San Francisco, an 1863 law prohibiting cross-dressing led to over one hundred arrests before the end of the century.[12] These statutes actively worked to remove individuals from public spaces that society deemed abnormal.
Enforcement often did not depend on any harmful act. People were arrested simply for how they appeared. Emma Snodgrass was arrested multiple times in the 1850s for wearing pants in public and was eventually charged with vagrancy.[13] Dr. Mary Walker, a Civil War surgeon, was arrested repeatedly across different cities for wearing pants, despite her status and professional role.[14]
Authorities justified these arrests by framing gender nonconformity as “disguise.” Cross-dressing was treated as an attempt to conceal identity, even when there was no evidence of deception or harm.[15] That reasoning extended into broader legal doctrines. New York’s 1845 vagrancy law allowed for the arrest of individuals who were “disguised” in a way that prevented identification, and it was used for decades to target people whose appearance did not align with gender expectations.[16]
The consequences could be severe. In 1890, in San Francisco, Dick/Mamie Ruble was sent to a state asylum for violating cross-dressing laws and remained there for eighteen years until their death.[17] Others were jailed, fined, or deported under similar legal frameworks.[18]
When cross-dressing bans declined, the policing did not stop. It shifted into broader laws that allowed discretionary enforcement. Gender nonconformity continued to be targeted through doctrines like disorderly conduct and vagrancy, which gave authorities flexibility in deciding who to target.[19] Historical accounts describe police enforcing informal rules, such as requiring individuals to wear a certain number of “gender-appropriate” items of clothing, making legality dependent on appearance.[20] The law relied on perception rather than explicit gender expression.
These forms of enforcement have continued into what we see today. Modern laws reinforce gender norms and expectations not only through enforcement but through messaging. Even laws that are rarely enforced can communicate that certain identities are undesirable and should be regulated. [21] These laws signal to the public that deviation from gender norms is risky or inappropriate, and they can encourage people to act on that belief.
These laws reflect an effort to define which bodies fit within accepted norms and which do not. As a result, the issue is not just where someone is allowed to go, but whether they can exist in public without being questioned. Gender nonconformity continues to be treated as something that can be regulated, and those who do not fit expected norms are the ones who bear the consequences.
[1] Kansas Lawmakers Override Gov. Kelly’s Veto of Horrific Bathroom ‘Bounty’ Bill, Human Rights Campaign, https://www.hrc.org/press-releases/kansas-lawmakers-override-gov-kellys-veto-of-horrific-bathroom-bounty-bill.
[2] Id.
[3] Florida’s Trans Bathroom Law Explained, Them, https://www.them.us/story/florida-trans-bathroom-law.
[4] Florida Will No Longer Allow Transgender People to Change Gender on Driver’s Licenses, NBC News, https://www.nbcnews.com/nbc-out/out-news/florida-transgender-drivers-license-sex-change-gender-identity-rcna136395.
[5] Bans on transgender people using public bathrooms and facilities according to their gender identity, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/nondiscrimination/bathroom_bans.
[6] Egale Explains: Transvestigation, Egale Canada, https://egale.ca/awareness/egale-explains-transvestigation/.
[7] Transgender People and Bathroom Access, Advocates for Trans Equality, https://transequality.org/issues/resources/transgender-people-and-bathroom-access#:~:text=In%20fact%2C%20studies%20have%20found,'t%20conform%20%2D%20at%20risk.
[8] Legislative Attacks on LGBTQ Rights, American Civil Liberties Union, https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2026.
[9] Marco Rubio May Have Just Banned Trans People from Entering the U.S., Erin in the Morning, https://www.erininthemorning.com/p/marco-rubio-may-have-just-banned.
[10] Kate Redburn, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86 (Cambridge University Press, 2023), https://www.cambridge.org/core/journals/law-and-history-review/article/before-equal-protection-the-fall-of-crossdressing-bans-and-the-transgender-legal-movement-196386/B3EDFE10CC12E8BF140359437C0F69BC.
[11] Id.
[12] Clare Sears, Arresting Dress: Cross-Dressing, Law, and Fascination in Nineteenth-Century San Francisco (Duke University Press, 2015), https://www.dukeupress.edu/arresting-dress.
[13] Fashion Crimes: The Rabbit Hole of Criminalized Cross-Dressing in U.S. History, Antioch College, https://co-op.antiochcollege.edu/fashion-crimes-the-rabbit-hole-of-criminalized-cross-dressing-in-us-history/.
[14] Id.
[15] Id.
[16] Id.
[17] This Isn’t the First Time Conservatives Have Banned Cross-Dressing in America, Jacobin, 2023, https://jacobin.com/2023/03/cross-dressing-law-united-states-history-drag-bans.
[18] Id.
[19] Redburn, supra note 10.
[20] Jacobin, supra note 17.
[21] Drag Queens, the First Amendment, and Expressive Harms, Harv. L. Rev., https://harvardlawreview.org/print/vol-137/drag-queens-the-first-amendment-and-expressive-harms/.