Long before today's debates over trans rights, Americans were legally changing their sex. As far back as the 1800s, courts and local governments occasionally recognized gender transitions—issuing new documents and revising the legal record.

From 19th-century courtrooms to modern ID laws, Brianne Felsher (they/them), a PhD Candidate in Jurisprudence and Social Policy at Berkeley Law, explains the surprisingly long history of legal sex changes, and what it reveals about the fight for gender freedom today.

Douglass Collective is a community of lawyers and activists working to promote a more inclusive vision of the Constitution. We believe that the abolition of slavery and the Reconstruction Amendments provide a powerful blueprint for a world where we are all more free. By raising awareness of the Constitution’s abolitionist roots, and building community and power around that vision, we will chart a more free and equal future.

Intro Music: "Fantastic Negro Type Beat 'Nigga Song Remix'" by BarzMakesBangers: https://youtu.be/egdj0jlsQHA?si=ddBCdOMxCvMIP4hT

Welcome to Reconstructed, a podcast where we talk about the Constitution, how it shapes our lives, and how we can reclaim it as a force for good. I'm your host, Taonga Lesley and today we're tackling the history of gender transitions in the law. To help us understand the long and interesting roots of gender transition, we are going to be joined today by Brianne Felscher,

Brianne Felscher is a PhD candidate in jurisprudence and social policy at the Berkeley School of Law, and they are the author of the groundbreaking article Sex Change by Court Decree, which was recently published in the Georgetown Law Review. Welcome, Brianne.

Thank you very much.

Well before we jump into the article, which is fascinating, I was curious what brought you to be interested in this line of research. Why history and tradition? Why now? Why dive back into these archives?

Thank you for asking this. So I actually started with the history. My training at UC Berkeley is that I started in this program in jurisprudence and social policy doing a legal history program. And I then ended up getting my JD. I decided to focus on the history of queer and trans people and how they were using the law.

And I became especially interested in queer and trans people as active agents in using the law and how they were directly involved in using legal systems in areas such as gender transitions, but also family property and so on. I was doing this work, but as I was doing this work, there were all these debates going on about trans rights and LGPT rights in general, but especially trans rights.

These debates were very scary and frustrating, both as a trans person, but also I was frustrated as a historian because they weren't getting the history right. And there was this constant focus on this idea that gender transitions were something new, something that we never heard of before. this work was particularly inspired.

By Dobbs, the case that overturned Roe v. Wade, which really cemented this idea that in order for a right to be protected by the Fourteenth Amendment and to get strict scrutiny, it has to be deeply rooted in the nation's history and tradition. And that made me think about well, what does it mean for a right to be deeply rooted in the nation's history and tradition? And also, what is the responsibility for historians in engaging with law?

I think this is an ongoing discussion that historians are having of what role should historians play in constitutional understanding. How much do we play into, for example, originalist interpretations of history? But I wanted in this article to at least set the record straight, at least give a trans legal historian's perspective on what is this actual history of gender transitions. And if we're going to have these debates.

about trans rights to acknowledge that trans people were having this long history of exercising their rights.

when I was in school, Legal history was not a very diverse space, I'll say that.

I did not see many people of color, I did not see many queer folks. was kind of wondering what made you get into that in the first place? What drew you into thinking about history?

Yeah, that's a great question.

It was a little bit by accident. My undergraduate training was primarily in human rights and sociology. And so when I came to graduate school, I came to this interdisciplinary law and society program. That's what jurisprudence and social policy is. I originally was gonna do sociology and I was interested in sociology of queer people, just because I am queer and because I haven't been as much writing about it. But I took a legal history class

And I got motivated partly because I couldn't find the kind of book I wanted to read. first of all, there just isn't that much queer legal history, period. There are some great works of queer legal history that have been written, but it's still a very small field. so some of it was just there's only, to my knowledge, one person who's written a book on nineteenth century trans legal history.

Which is Claire Sears Arresting Dress. So some of it was just I wanted to write the book I wanted to read. the other motivation was I got very inspired. You mentioned about legal history, historically not been very diverse. And I got very inspired by some of the work that's been done, both in the legal history of women and the legal history of people of color. My advisor, Dylan Penningroth, writes about the legal history of black people exercising their civil rights. I also have talked to other legal scholars who do work

on the history of feminism or feminist rights or do contemporary work on abortion or women's reproductive rights or reproductive rights in general.

And

I was kind of thinking, okay, there's this work being done in these other fields. How can we think about how that intersects with queer history? I also met a lot of wonderful grad students who were doing the work on queer and trans legal history. And I think that this sort of feeling of there's something emerging, there's something happening, this is something that's an exciting place to be in has been motivating for me. And I'm hoping that

there are more works in the future that are doing queer and trans legal history that this is a field that continues to grow.

I wanna get into a little bit about, how you went about unearthing this history. Cause I think I totally agree there is this dominant narrative that just like, well, queer people just didn't exist in the past.

certainly if you're just doing that first level West Law Supreme Court cases or even federal cases, you won't find the kinds of things that you are unearthing in this article. So I want to know how you went about the research, how you found sources, how did you begin do identify these folks in ways that maybe were not always visible in the record?

lot of this research came out of my dissertation. So my dissertation is on the legal history of queer and trans families. I do multiple strategies. As you mentioned, there isn't very much if you just look on Westlaw. Like if you look up

Queer or trans, even if you look up something like sodomy, you're not gonna find that much on West Law. Occasionally I was writing about people who were in state Supreme Court cases, or in one case in actually a US Supreme Court case, but there's rarely anything in the text of those state Supreme Court cases or the US Supreme Court case that tells you that they are trans or intersex or gender nonconform.

So I did a couple strategies. One strategy which has been very popular among queer and trans historians is newspaper-based research. And this has gone much easier since newspapers have a lot of them been digitized. So I did a lot of research using newspaper databases like newspapers.com or Chronicling America, which is a free Library of Congress newspaper website. And I would search for terms like

masquerading as a man or disguised as a man or even like male attire gets you a lot because they don't tend to point at the cis men are wearing male clothes. And then I gender flip them. So disguised as a woman or masqueraded as a woman. those are terms that have been used used by hit trans historians. So have that as a basis to work on. But the problem with newspapers

is that you rarely get the voices of trans people themselves and they can be very sensationalized. They also can

be very focused on emotions that maybe aren't true like everybody's always crying in newspapers and then they also they'll tell you sometimes about the law but they don't give you actually the legal record. So if I wanted to find the legal record, for example, if I wanted to find a law case, if I wanted to find somebody actually using the law, I would use those newspapers as a jumping off point. And one of my

Favorite strategies has been that I've reached out to a lot of local historians and local archivists, and they've often been really helpful. So I've had really good experiences just reaching out to somebody. for example, one of the people I write about, Charles Fear, who was in a little town in upstate New York, Ripley, he was

is known by his town that he transitioned gendered, but he was appointed to local office. I found out more information about him just by reaching out to the town historian and saying, Hey, I'm a grad student. Do you know anything about this person? he dug up all of this information, he drove out to a cemetery for me, took a picture of his gravestone. And I think that that has been one of the really rewarding parts of this research is that it's about creating these relationships with people.

I've even gone in touch with a couple of people's descendants. One of the people I talk about, Roland Kedzy Morgan, I got in touch with his wife's great great great niece, who was super sweet and had some stories that her grandma had told about her great aunt. So she'd had this past down family stories. Another strategy has been some states do have decent legal records.

I looked at an intersex woman in Virginia and Virginia has fairly good legal records. So that one I I was helped by an archivist and they were able to dig up this like 200 page case for me. But there is a lot of going through it with unconventional routes, and a lot of it is asking people for help. but that is actually something that I love about this research, especially because

My dissertation is very focused on relationships. It's all about like trans and queer people and their families and communities. And I think this work is really only possible to do when you're interacting with people in community.

I wanna, get into some of these narratives. Really fascinating and I encourage folks to read the article. we can start with the one I think that you spent the most time on, which is Howard Calder.

who he was, what his story and arc of using the law for gender transitions was.

and also I'm curious why you anchored in the story as well.

Howard Calder is a story of a white man who lived in Maryland and one day he goes to his Catholic priest, he's been in the Catholic Church for about ten years, he goes to this priest, and he says, I'm actually a man. I'm not a woman. You've known me as a woman, but I'm actually a man.

And the priest says, okay, he says, I agree, you're a man. And that part of the story already capture me that goes against a lot of our assumptions about trans history. That we have somebody who is not trying to 100% pass. He's not going somewhere where no one knows him. He's going to somebody who's known him for several years who's a Catholic priest and saying, I'm a man.

And it was also interesting to me why his priest agrees with him. And part of the reason his priest agrees is that Howard Calder had short hair, he'd always seemed kind of masculine. So the priest saw him as correctly performing gender. he's a man because of the way he acts. And Howard Calder says to the priest, I want to marry this woman, Kate Beale. There's a couple issues.

One issue is that Howard Cowder have been presenting as a woman. The priest actually ends up being okay with that. The other issue is that Kate Beal is a Protestant and Howard Cowder is Catholic. And the Reverend actually gets a a special dispensation to perform this interfaith wedding. But the third issue, which is actually ends up being the biggest issue, is that Kate Beale is seventeen and much younger. You actually can marry in Maryland if you're sixteen at the time, but I'm not sure if if the Reverend just didn't know or

Wanted to make the the AJ team. But he says you can't marry until you're 18, unless you have your parents' permission. They come back with a note that's very obviously forged from Kate Beale's parents saying should be able to get married. The priest doesn't buy that, marries them on Kate Beale's 18th birthday.

for a little while Kape and Howard Cowder aren't living together. Kape continues living with her parents. And then they eventually elope and run away. And Kate Beale's parents go after them. Howard Cowder's family is also not supportive. They're saying he can never come home. There's some suggestion that he had a previous relationship with a woman they also didn't approve of. And then

Kateal ends up being sort of taken back to her family. It's a little bit unclear how much she agreed to this. And Howard Kelder goes to a judge and seeks a writ of habeas corpus. We think of a writ of habeas corpus as a mechanism for criminal law, but in this case it means that he thinks his wife has been unjustly detained by her parents, so he wants her back. So he's exercising his rights as a husband and as a man. So what he sees as his right.

And the judge says it's up to Kate Beale. He gives her the decision she says, if you do medical examination, you prove to be a man, I'll go with you. He does the medical examination. It's unclear exactly what the results are, but she doesn't go with him. The newspapers conclude that the medical examination said he was a woman. Howard Calder then moves, he ends up in Florida, he remarries, his second marriage seems to go much better, possibly it's his third marriage, and he lives as a man for the rest of his life.

And what struck me about this story is the back and forths in it. And the moments where people are kind of unsure what to do. the priest says, well, actually the issue is not necessarily gender, it's that you're trying to marry somebody 17. And the judge who's kind of, well, maybe it's actually up to your wife. And one of the the aspects of the story that really stood out to me is that the deciding factor in Howard Kelder's story.

Is his ability to convince the people in his life. The ability to convince his family, the ability to convince his community, the ability to convince his judge, his reverend, that he is a man. And that a lot of what it meant to be a trans person, what a lot of what meant to be any member of society, was about convincing the people around you of who you were. Which was great if you were likable and your family liked you. Could be a problem if your family didn't like you. but it made me think about

Why is it that people are seeking this family and community recognition? Why is it that he even tries you know he could just run away with Kate? why does Howard Calder think about marriage as being something he wants? And why is it that there are those people along the way, including his Catholic priest, who says, Yes, I see you as a man?

so many things come up from me in your story. Number one is that it's really impossible to pull just one thread from there to here, 'cause like there's different norms about just about everything. There's different norms about what rights a husband has over over his wife, what ages are appropriate and age gaps can we have,

It is also interesting to me that there's some medical, there's some societal, there's some religious, there's some court. really fascinating. so you point out that

It's not just the one. Like it seems like there's several folks who actually do get these successful decrees. Arthur Carver you mentioned, Carl Crawford, people who actually do go through this whole process and the courts actually do end up affirming their gender and then they just move forward.

are there patterns you notice in what makes things successful in this era?

there's definitely are patterns. So as you mentioned, there are a few people who successfully transition gender, which can mean a lot of things, but there are people who get some kind of legal recognition. So they get a legal name change, they get court that says you're a man. Some people don't get that kind of recognition but do get arrested and then a court will acquit them. There's a few patterns. The most common pattern is that they're almost all white trans men.

And usually, but not always with some money. So there's various reasons for this. one is that they're benefiting from being white and from their white privilege. which both makes it more likely that a judge will believe them, but also means that they have more powerful friends. one of the patterns is that they've usually convinced other people in their life. They've usually convinced their priest, or their doctor, or their parents. Somebody else is on board.

I speculate that some of them might have been likable people. They were friendly people, people liked them. Which isn't to say that people who didn't succeed weren't likable, because plenty of people are likable are discriminated against. But I do think that it helped if you were kind of a friendly person. And another factor is they were more likely to succeed if they were able to make some kind of medical argument. So if they were able to s get a doctor to say that you are actually biologically a man.

Which some of these people I would guess were intersex. For example, Lawrence Payne I write about, who was a white trans man who transitioned in the eighteen eighties in Virginia. His doctor said that he was intersex. so I think that helped. I don't think that was always a deciding factor. There were people who there's not particularly any evidence that they were intersex. There's people who

There was a lot of debate over what was going on with their bodies. And I also think that they didn't always draw a sharp distinction between your bodies and your mind. But it did help if you can make an argument that you had some kind of biological reason. So I think the main factors are race, gender, to some extent class, and also how many people you could get on board, as well as whether you can make a biological argument did help.

it does seem that the way they're thinking about biology is maybe more amorphous. Like there's this one example of a trans woman who talks about this

a spontaneous transformation that she's had it seemed like the doctor goes on board with it, you write about

a series of sensationalized newspaper articles about people transforming. can you talk a little bit about that and ways in which they thought and how that maps onto now, how it was different.

one of the phrases that keeps coming up is sex change, which now we use is kind of an outdated term for gender affirming surgery, getting some kind of bottom surgery usually. But when they said sex change in the eighteen hundreds

What they often met was one of two things. One of them was this idea that you could kind of have a magical transformation of your body, one day you could go from man to woman or woman to man. And this is also in a period where they're generally afraid of transformations. There's also anxieties that you could transform your race. There's anxieties about people pretending to be disabled. so there's generally anxieties about things that can change your body that will change your position in society.

This is something that is a recurring theme. sometimes they'll evoke, metamorphosis, like Ovid's metamorphosis, or they'll talk about it as this magical thing, or they'll talk about somebody spontaneously grew facial hair. I don't always know exactly what is happening biologically. I think in some cases the person was intersex and some intersex conditions have

later onset. you might go through puberty or you might later in life have facial hair that you didn't younger. Occasionally I've seen pictures of these trans men who supposedly went through these transformations and they do have facial hair. But there also are cis women who have facial hair. they don't quite know what's going on with sex. And there's a various stories where they can't quite figure out what sex people are. So there's a story

Of one person. we just have their dead name of Rosa Smith. I don't know if that was the name that they actually went with, who was arrested in Buffalo. there's this quote from the Buffalo Courier Express where they say an attempt was made to prove that she was a woman of bad repute, but this could not be done. And then again it could not be shown that he was a woman at all. And the the change in pronouns is in the original article.

And I thought that was fascinating that they're like, we arrested this person for cross-dressing, but we don't know what gender they are. and they end up letting Rosa Smith go. there's

Different ways that they can approach this gender ambiguity, one way is that they can pathologize it or medicalize it or criminalize it. But sometimes their way of approaching it is kind of say weird things happen. Sometimes men turn into women and women turn into men is a little weird, but like, you know, that's my uncle, he turned into a man, and like that's a little strange, but I love him, Sometimes strange things happen. And I think that that gave some space for trans people to make these claims about their gender.

You know, I want to also touch on technologies broadly. I feel like our current court, definitely the current culture is hung up on the sense of this is all new, and it's true, some treatments have become available now, some medical options have become available now. And yet you spend part of your article talking about the court strategy, some people are getting decrees

From

as you mentioned, this has been a question that's come up a lot in court cases and also just generally discourse around trans rights. Is there often be an argument that's made something like puberty blockers, which delay puberty for trans kids and teenagers. They're also used for non trans kids and teenagers. People will say puberty blockers are super new. They'll also make arguments about bottom surgery or about hormones, so testosterone

Estrogen hormones, things like that, that those are super new. I think there's a few ways to approach this. One way of approaching it is to say lots of modern medicine is new. Arguably a lot of this medicine has been around for much longer. Sometimes they'll say it's only been around for 20 years, which is a pretty long time as far as medicine goes. But I think we don't want the standard

And I think that there's advantages to that framing. I think there's also disadvantages. One being what if your parents aren't aboard or what if you're not a kid? so w I was thinking about, well, how else can we base that right? And what is this right actually about? And I think a lot of what the right is actually about, which is similar to the right that a lot of other marginalized people are fighting for, is a right to bodily autonomy and a right to modify your body in accordance with

How

you see yourself, how you want to move through the world. then I was thinking, okay, so how were people in the 19th century doing this? And in many ways, their goals were similar to people today. They just maybe did different methods. So, for example, a lot of trans men wanted facial hair. And a common strategy is that they would shave to try to make more facial hair. And there's quip that a dissertation by Jesse Baker on

Nineteenth century trans history, where he's like, This doesn't work. you don't actually have more facial hair if you shave, but trans men still do it today because they think it'll make them have more facial hair. It's still a popular strategy. I was thinking, well, I don't know if it matters if it worked. They the point is that they saw this as something important to them. They wanted to have more facial hair. trans women similarly would shave because they wanted to have less facial hair, is more more effective strategy. And also there's occasionally references to practices like binding or

stuffing up raw. There's not a lot of of coverage of that, which I would guess reflects newspapers being a little squeamish about r referencing people's breasts in a newspaper. But there's occasional references to that. it was making me think, well, they're wanting similar things. They're wanting to be able to control their body. And then I was also looking at the history specifically of surgery. And I would

But I still think we can think of that as a form of gender-affirming care, because gender-affirming care is something that we all do, and gender-affirming care is definitely something that intersex people do as well, that they're trying to modify their body in accordance with their sense of gender. And I think that if we have this broader understanding of gender-affirming care, where it can be anything from shaving to a surgery to even the clothes you wear, wearing makeup, that these are all forms of gender-affirming care that everybody does.

And I think this also can be a helpful way to tie trans rights into, for example, abortion rights, which are rights of disabled people, rights of people of color, that a lot of it's about focus on being able to control and have ownership over your body, you want to be able to make choices about your body that fit how you work in society. And I would guess that a lot of those nineteenth century trans people would be more interested in surgery now that it's gone much safer.

But I wanted to focus on what was that core desire. And I think a lot of it was about control over the body, but also control over how you interact with society.

there's just a lot to navigate in terms of how we map our identities now onto what people in the past felt, how they presented,

I was curious how you went about that in deciding what terms to use for people, what pronouns, how did that go into your process of researching and also into writing this article?

all trans historians have their own takes on this. Generally my approach in terms of names and pronouns would be to go with whatever name they seem to be their chosen name. Some people had multiple names, so Howard Calder also went by Hiram and occasionally did use his dead name even after he was presenting as a man. I I thought about it, decided to go with Howard Calder 'cause it seemed to be the main name he used.

And I would generally choose whatever seemed like the name that they were using most commonly, that aligned with their gender identity. Occasionally I don't know. they only give what might be their dead name or occasionally, especially with people of color, they sometimes don't give any name, in newspapers because newspapers tend to be more focused on white people's stories.

but I try to give whatever name I think was the name they used. And then in terms of pronouns, I generally assume that if somebody was presenting as a man or presenting as a woman that they would be okay with he or she pronouns. Sometimes there's debates over kind of is this person really trans or sort of are they really a man or are they just doing it for economic reasons? And I think that's kind a silly distinction because

All of our genders are wrapped up in all kinds of choices. We all make choices about gender presentation that have to do with economics. I mean, there's a reason during the COVID pandemic more people wore pajamas because people don't have to make choices about economics. They they tend to dress more casually. And I think that what mattered to me was okay, they were telling everybody around them they're a man or that they were a woman. So I'm gonna use he or she pronouns for them. I use they them pronouns if I don't know. So that's often people who

All I know about them is that they were arrested for cross-dressing. And I don't know if that was sort of a one-time thing or if that was something about the expression of gender. Occasionally I come across people who did identify, for example, as women, but occasionally wore male clothes and I'll use she pronouns for them. I also use they them to refer to Maud Millbourne because they explicitly talk about not being a man or a woman. And I don't think they use they pronouns, but I think it communicates to the reader that that's how they felt.

and I acknowledge when I call them trans that that was not a term that they would use. But I think that it's still helpful in conveying to modern readers what was happening, which is that the way I'm focusing on trans in this article, which isn't always how people focus on being trans, is thinking about transitioning.

Which doesn't necessarily mean just medical transitioning, but even just telling people your pronouns are different. partly because I think that that is how people in the eighteen hundreds often focused on what it meant to be what we would now consider trans.

although a lot of, the most successful folks were white, were trans men for reasons you've named.

You did lift up some black folks and the different circumstances and strategies that they were using, wondering if you could talk a little bit about one of those because it was interesting. Some folks were really also thinking about that even shortly after the end of slavery.

it was definitely harder to find stories of black trans people, but it wasn't impossible. I'll say a couple of things. One is in terms of finding them. I found that it was easier to find black trans people in the record if I looked for terms like descriptions of clothing, like male attire female attire.

tended to find more people of color. So I would suggest to people who are trying to find more trans people of color that those tend to be useful terms.

Do you have a

thought on on why that is?

Yeah. So with white trans

people they often refer to them using female husband as a common term for trans men. I've seen it rarely used for black trans people. And I think it's because newspapers are a lot more interested in the family lives of white people. So

if it's a white person, they'll often tell you like everybody in their family so much they'll dig up like where they lived, who their like step parents are. It's like so much family detail. Whereas with black people, they're often more focused on their criminality or their perceived criminality. of perceptions of them as having done something theft is often the the accusation. or sometimes

pre civil war that they'll accuse them of having run away from slavery, and sometimes in cases where it seems like the person was born free, not always clear. sometimes notices for people who run away from slavery, they'll mention that they cross dressed as well. less focus on kind of their family life. which is

sad for many reasons one of them being that there's just not a lot of focus on their humanity and how they relate to other people. It also makes it more difficult as a historian because sometimes they don't even give their names. there's less information about how they related to other people. So I tried to do a few things to get around this. One was I found a couple instances where there was more information. I looked

in some black owned newspapers. I didn't find a huge amount, but s sort of going later I found some more. So for example, there was a woman named Georgia Black who had transitioned in the nineteen tens, and had married a man actually under her dead name.

she died in the nineteen fifties. And I have just a brief mention of her, but her I know more about because her son published a piece in Ebony magazine after she died. that was a very like loving depiction of his mother. it was called My Mother Was a Man, but it was all about how like he loved his mother anyway.

so there's occasionally moments like that where I'm getting from their family. the other thing that I tried to do was think about what are these patterns of criminalization. So for example, I talk about Georgiana Hawley and James Chester, which are a sad story and also kind of an exception where Georgiana Hawley was a

black trans woman who lived in Arkansas and James Cheshi a white man, I assume was a cis man. And they married and Georgiana Hawley claimed that she was intersex. And unlike a a lot of these other white people, the court didn't believe her. And she and James Cheshi both sentenced to several years in prison for buggery, which is like sodomy. And I had a great conversation with Rachel Trusty, she's a historian, put together a whole

primary source database on them. they're the only couple I found who got so long in prison. They got several years in prison. And the only c instance I found where the cis person also got several years in prison. it seems pretty clear that it was because it was an interracial marriage. Rachel Trustee also thinks that there might have been some local politics involved, like a sheriff wanting to seem sort of tough on crime and and targeted them.

I sort of said at the beginning about it helps if people like you, if you fit into the community. And part of what that meant was not being an interracial couple, you know, it was easier for white people to sort of ac access that kind of community approbation than it was for especially people an interracial couple.

I try to find examples of how black trans people were fitting into the black their like local like black neighbors, how they thought of them. if maybe white white people didn't like them, did their family and community like them? there's less in newspapers, but there is some suggestions that even if the white officials might have been disapproving of these black trans folks, that that didn't necessarily mean that they're

black neighbors and family were disapproving of them, that they might have fitted better into their black communities.

one a thread that you lift up that I did not know was that ID, just that even the idea of having an identification did not really exist for white people in the eighteen hundreds, although it did exist for black people. and the idea of like needing to go to a court for a name change is also a relatively recent invention there was

This common law idea of like, well, your name is what you're known to be called around. So I wonder if you can talk a little bit about these changes in how we even think of how do we know who somebody is, what their gender is, what their name is.

white people were originally like very resistant to something like a driver's license. they saw that as something that wasn't for white American born people. You sh you shouldn't have to prove your identity. I think we think of this as ubiquitous, but it something that there was some resistance to.

A lot of my insights onto IDs, there's been some other people who've been doing some interesting writing about, for example, the history of the birth certificate, the history of the passport. And there's various ways that people identified who you were. So one way, for example, was the family Bibles were sometimes seen as very important. People would like write down who you were and when you were born. but another aspect was for black people, especially

before the civil war they did have to have some kind of papers and so there's an example of a black person who gets arrested a black trans woman named Marianne waters, she was arrested in eighteen fifty one because the police suspected that she had run away.

their evidence was she didn't have any documentation to support her. they accused her of cross dressing, so they kinda thought that she was running away. that was a way that the lack of documentation was very harmful for her. she ended up being detained for a while and eventually released. it's not clear exactly what happened. But another aspect that was really important, I think for everybody.

was community understanding that a lot of who your gender was, who the people around you said your gender was. That also applied for age, how old you were was very nebulous. If you look at census records, people's ages very wildly. and a lot of this was kind of what do people around you say? And that's I think something that I really came back to is it it really mattered what people around you thought of you. which I think still matters.

There's still plenty of people who the name they actually go by is not whatever name's on your ID, or there's people whose IDs doesn't match how they relate to people in other ways. but I think that's even more in important. And I think that that focus on community understanding was really important to me as we think now about how trans people are being pushed out of public life. That part of what they're losing is not just an ID or

access to a bathroom or access to a sports team, but access to participation in public life.

Well that does kind of bring us home you know, you've written this as a legal historian and you have I think a point of view about how this can and should inform, the legal debates happening now. for listeners who are following more casually, it's not been a good season at the Supreme Court for trans rights.

I think in

Remedi, which was concerning access to medical care, they refused to find discrimination there. this Heacox Velittle case that came out, they uphold bans on trans participation in sports teams. what is your hope for this article and research like this to inform how we think about law?

I think there's a few possibilities I hope for this research. my ideal is that you know the Supreme Court reads it and then they say trans people should have rights. This is changed my mind. But I don't necessarily think that that's that's gonna happen, even though I hope so. But I do hope that it informs the debate in a few ways. One is that I hope

I'm a I'm a trans person, I've a lot of trans friends, a lot of the people I'm responding to are queer and trans people, that this gives kind of some hope to other queer and trans people, that it gives kind of an of

understanding that there's a history that things haven't always been this way, that things have been in some ways even better in the past, that they maybe will become better again. that the way things are isn't the way they have to be. And I think that that can be optimistic and sort of every time I read a bad news story about trans people, I kind of go to this history like, okay, well, this person in nineteen you know, eighteen eighties was convincing his priest, that he was trans and that can give me hope.

I also think that it can inform the debate from a a concrete legal perspective in a few ways. One is that there is this argument that keeps being made mostly in circuit courts, or sort of state courts like lower courts, that trans rights aren't deeply rooted in the nation's history and tradition, that trans people should not have rights because they're new, and also that their rights are new, and that no court would ever protect their rights.

And I'm arguing that that's not true. That there's this long history of various legal officials recognizing trans people's rights, and perhaps even more importantly, of trans people and the people around them asserting that they have this as a right. I think there's another angle, which is that this came up in the concurrences in Scrimetti, so justices who agreed with the decision but had different reasoning. They said that trans people are not historically discriminated against.

Which is also kind of confusing because okay, so trans people are supposed to have had a deeply rooted right. but also under equal protection, the argument is trans people should have to have been historically discriminated against. So it's sort of like are they supposed to have been historically discriminated against or they're supposed to historically have had rights?

It's it's a contradiction that it comes up with women's rights as well. So for example, there'll be an argument that abortion was not historically legal, so women shouldn't have a right to abortion, which there's various historical arguments about that. But there's also this counterpoint of, well, women should be protected now because they were historically discriminated against. how do you balance that?

I think this is a common problem when writing about the histories of marginalized people, how much is this a history of suffering or a history of triumph? how do we tell these histories? two things. One is that people cared about the right to transition, not because they were free from discrimination, but because they were being discriminated against. they cared about gender transitions because it helped protect them. So Carl Crawford, who's

Sex change by court's decree is about Carl Crawford. He got a gender transition in Tennessee in nineteen two, officially from the court, because he was worried about being arrested. He had a real worry that he would be imprisoned. And I think that that is one thing that keep coming back to was kind of these rights matter because they're a protection against discrimination. Not always a complete protection. People can be arrested even if they have an ID or if they're allowed to use a bathroom.

That trans people need some of these rights partly because they can be very protective. And the other aspect of this article and I think this history that I keep coming back to is that aspect of community and public life. That a lot of what trans people cared about was not just kind of abstract ideas of their internal id gender, but could they participate in public life? could they marry?

Could they go to church? A lot of these people participated in church. Some of them held local office. They were barbers. they ran inns, they took in borders, they were working as cooks, they had like all kinds of jobs. They were like very much a part of their communities.

that a lot of what it meant to transition was to be able to be a part of this community. And that I think a lot of the attacks on trans people now, whether that's not allowing them to use bathrooms, not allowing them to be in sports teams, not allowing trans books to be taught in schools, it's often about saying to trans people, you shouldn't be in public. Like because if you can't go to the bathroom, it's really hard to spend a day in public. you're not welcome.

And I think that that's also a way that trans rights are similar to the rights of other marginalized people, where a lot of it is about access to the community, access to public life. for example, the disabled people fought for access to bathrooms as well. what does it mean to have access to the public?

And I think that the Supreme Court will say, we're not discriminating against trans people. we're just saying that a certain group can't get puberty blockers or certain group can't be about sports teams. How is that discrimination? But what they're doing is that they're upholding this message to trans people that they're not welcome in the public. And I think that this history helps illuminate why that is so harmful to people.

what do you think that you want to do next with this information? How's it how's it learning for you now that it's done? curious about that.

as any academic and any writer and any person, but also particularly as somebody doing this work, I think that this work to me is also all about community. Like I say I'm writing about community, it's also all about being part of a community. So I think one of the things this has really meant to me is about being a member of a community. I was constantly talking to people about this work.

Appreciate my husband has listened to me talk about this work one million times and but my husband's also trans I've talked to other people in my life and I think that that has been important to me when working on this work, that it's something that I can explain to people who are not just academics, they're not legal scholars.

in terms of the next academic step. So I'm finishing my dissertation, which is on the legal history of queer and trans families, which is not a constitutional law piece. it's focusing specifically on the history of queer and trans people, relationship to marriage, child rearing their community. But it's again getting back to that question that's always really fascinating me of how do queer and trans people use the law and how do they participate in their community.

My plan for the next article I'm writing is to be focusing on the relationship between trans rights and women's rights, particularly the historical connection between the two, because there's often this idea in the present day that trans people are kind of oppositional to women, bad for women. But one of the things I was finding that I mentioned about in this article is that there were these various arguments being made that actually the right, for example, to wear pants, that's actually like a women's rights issue.

they would say that this is about women's rights. suffragist magazines would talk about trans rights, which they were framing not maybe as we'd frame it now, they're framing as, for example, the right to wear trousers. but I think that we've overlooked some of that history of the connection between trans rights and women's rights. And touched on that here, but I wanna focus on it more for my next paper.

brilliant. I am excited to read what you have next. Really appreciate you taking the time to join us.

Thank you so much.