On an early February morning in 1974, two women were arrested after having breakfast together in a Chicago restaurant. The crime? Being transgender. Ms. Kimberly and Ms. Wilson were charged with violating a City of Chicago Ordinance that made it illegal to wear gender-affirming clothing. At that time in Chicago, it was a crime to "appear in a public place in a dress not belonging to his or her sex, with intent to conceal his or her sex." City of Chicago v. Wilson, 75 Ill. 2d 525 (1978).
Gender expansive people have been stigmatized, shamed, and criminalized for centuries and transfeminine people and women of color have been a primary target for this systemic violence. For this reason, trans people have had to fight for the most basic right to exist - and Ms. Kimberly and Ms. Wilson were no exception. Knowing this law violated their human rights, they challenged the "cross dressing" ordinance all the way to the Illinois Supreme Court. Arguing in painful and humiliating detail about their clothing, their bodies, and their medical history, the City of Chicago defended the ordinance. It claimed the law was necessary to detect criminals, prevent antisocial conduct, maintain the accepted norms of our society, and even to "prevent crime in washrooms." Basing its justification for this transphobic law purely on transphobia (the fear of transgender people), the City did not submit any evidence whatsoever to support these justifications for the law. In finding the ordinance unconstitutional as applied to Ms. Kimberly and Ms. Wilson, the Illinois Supreme Court rejected all of the City's arguments for this harmful law and made it clear that absent any evidence to the contrary, the Court cannot assume that two transgender women "are prone to commit crimes" simply because they are transgender. The Court found that "the City has failed to demonstrate any justification for infringing upon the defendants' choice of public dress under the circumstances of this case."
Fast forward nearly 40 years to the year 2016 and some school districts and Illinois Legislators are still making these outdated arguments rooted purely on the fear of gender expansive people. Instead of taking the opportunity to work proactively to shift school culture to promote healthy development for all students regardless of gender identity or expression, some schools are resorting to tired legal arguments about the "safety" and "privacy" rights of cisgender students to marginalize transgender students. These arguments are all too often based on the very same unsuccessful arguments the City of Chicago made in its attempt to justify the law criminalizing wearing gender-affirming clothing in the 1970s: maintaining restrictive social norms that reject gender expansive people and preventing crimes in the washroom. It is this line of thinking that has led to lawsuits against school districts for violating state and federal anti-discrimination laws and to the introduction of House Bill 4474 by Illinois Representative Tom Morrison.
Fortunately, gender expansive students, much like Ms. Kimberly and Ms. Wilson, are amazing and resilient. Trans, genderqueer, non-binary, and gender expansive youth continue to resist harmful policies that force them to use segregated facilities, have their identity denied, and subject them to multi-level violence. The Alliance has been fortunate to work closely with school districts who know that creating an inclusive environment is what is best for students – cisgender or not. All students benefit from an environment that does not just tolerate difference, but embraces it. All students benefit from learning about other identities, races, genders, sexual orientations, and religions.
To the students out there fighting for their right to exist in school: know that we are proud of you. Know that we are a phone call, Facebook post, email, or tweet away from being at your side. And know that we are so glad you exist. Our fight for self-determination has come a long way in 40 years but we still have much work to do to leave the unfounded fears of gender expansive people behind us. With your leadership, we’ll get there.
By Owen Daniel-McCarter, Policy and Advocacy Director