Know Your Rights as a Crossdresser

Michael Silverman

Perhaps you’ve been wanting to break out your other half more often — at the super market or that new martini bar downtown — but have been nervous about what could happen if you have a run-in with some bigots or a police officer. Recently we spoke with Michael Silverman, executive director of the Transgender Legal Defense and Education Fund, who answered some questions about a range of dangerous cross-dressing scenarios — and what you can do to protect yourself.

The Girl Inside: What are the basic rights of a cross-dresser in the United States?
Michael Silverman: We have a patchwork of federal, state and local laws in the United States that may protect men who cross-dress. There really aren’t particular federal laws that address this issue but there are a number of local laws that specifically provide protection based on gender identity and gender expression — and really gender expression is the key here in this question. … There’s not one [law] that I can point to and say, “Wow this is going to afford everyone the same protection across the country.” Really it depends where you live…

There are different federal laws that protect people, for example, on the basis of sex. Some of those laws have been interpreted to include concepts of sex stereotyping, which is judging people based on stereotyped notions of what we expect traditional gender roles to be. Arguably someone who’s cross-dressing could be protected in that way, but there have been cases for people who identify as transsexual — some have succeeded, some have failed. So again, even under this federal law which applies across country, there’s not uniform application. Depending on where people live there’s more, there’s less, there’s no protection depending on what the courts said. I haven’t seen any of those cases on this question of sex discrimination applying to transgender people being used for the subset that we’re talking about here, which is men who crossdress. So I would say we are looking more toward local ordinances for this particular population. That means state or local.

TGI: Which states are the most TG-friendly and why?
MS: I believe there are 13 states now and … there are closer to 250 or 300 municipalities that include protections from discrimination on the basis of gender identity and expression. So New York City for example, with 8 million people, has a very strong local human rights law which protects people from discrimination on the basis of gender identity and expression. I don’t think there’s a human rights law in the county that’s been more powerfully utilized than New York City’s. And so certainly that is at or near the top of the list of places that protect people from discrimination.

TGI: What happens if I get pulled over by a police officer while in drag*?
MS: Once upon a time, 20 or 30 years ago, there used to be laws on the books that said wearing three or more articles of clothing of the opposite gender was cause for arrest. … There are millions of laws in this country. I’m not aware that those [laws] exist anymore or that there’s any enforcement of that. That said, for someone who’s cross-dressing, it often depends on what their status is in terms of how open they are about cross-dressing. Because there are lots of issues that arise. If you’re arrested, who’s going to find out? Who might you need to call? Etc. etc. So we’re dealing with situations where people might be concerned about being outed.

That doesn’t mean the police are necessarily going to out someone. It might mean that they need to call someone for a ride from the police station, they might need to call someone to make bail if they are arrested or something like that, whatever the reason for the stop, if it’s something related to criminal activity during the arrest. We have certainly seen cases of hostility toward people who are cross-dressing by police officers so one always needs to be concerned in those situations.

Another thing to think about if this stop is resulting in an arrest is what are the conditions of confinement going to be? That is, if you’re arrested and you’re a male cross-dresser, you’re more likely than not going to be put in a male holding cell. How safe are you going to be there? There are definitely vulnerabilities for people who are cross-dressing when it comes to interacting with law enforcement.

TGI: Do you have any advice regarding flying in drag?* For example, I’ve heard of some people who didn’t want to pack their breastforms in case they got stolen or damaged, so they just wore them. Is this a good idea?
MS: There is nothing in the law that bars someone from flying while cross-dressing. But … assuming that they have ID where they appear male, there’s going to be a disconnect between the identification and the way they are presenting. So they should be prepared for questions about that.

There could be two things going on there. 1) It could be causing discomfort for the person who’s questioning, say the security employee, so they may be acting in a hostile or unpleasant way. 2) They may legitimately not be clear on your identity: ‘You’re showing me an ID that doesn’t look anything like the person I’m seeing. What am I supposed to do? Who are you and why do you have this ID?’ And so someone may need to explain that.

…You should not anticipate being detained or arrested or anything like that. There’s nothing illegal about it. There’s nothing that says that you can’t grow out your hair and decide to wear makeup or have your eyebrows waxed or all these things that might feminize your appearance. Accept, when all of them come together and you’re wearing breasts and your license doesn’t have any of that, you’re going to have to address the confusion.

TGI: What can I do if I am harassed?
MS: There are so many laws and so many jurisdictions that are different, apply differently, have different scopes of protection. We would tell people to call us. We can do the research and figure out what’s the law in the place where this is happening. What are the possible remedies, where’s the right agency to complain to if that’s a possibility and things like that. So,

1. Call Transgender Legal Defense, because that’s what we’re here to do.
2. Keep records. Right as you’re being harassed, whether it is on the job, whether it’s in your apartment building, whether it’s at a bar or restaurant, or in a health care facility, you want to keep accurate records: Who’s doing it, what’s happening, where is it happening, when is it happening. If there are any details that you can document about what’s going on, if there’s anything written, keep it. If there are phone messages, keep them. All of this stuff can be useful to a group like ours, or lawyers who work for us later on, when we’re looking to see if there’s something that we can do to help make this stop. … Document, document, document everything if you find yourself in this [harassment] situation. There’s really nothing better than what we call “contemporaneous records,” records that you’re keeping as it happens.

TGI: How can I know if it’s safe to cross-dress at work without being fired?
MS: Again, that depends on the workplace.

1. Find out the law in your jurisdiction. Are you in one of those jurisdictions, like New York City, that protects people from discrimination based on gender expression?
2. Follow the dress code. Are you willing to satisfy the dress codes for the opposite sex? For example, … the women’s dress code may say no long nails, no makeup, no skirts. It depends on the job and it could be all sorts of things. Cross-dressing in the workplace means you are willing to satisfy dress codes for the opposite gender. It doesn’t mean you can throw dress codes out the window.
3. Talk to your employer about it. You want to try to minimize disruption in the workplace.

There are plenty of places where there’s not going to be protection for doing that [cross-dressing at work]. You want to be careful because you could be fired. And you could be fired without a whole lot of redress. … In some places, even under federal law, you can fire someone who is transgender. You want to find out what your protections are.

TGI: This question is a bit late for the presidential election, but can cross-dressing at the polls keep me from voting?
MS: Cross-dressing at the polls can cause some of the same confusion we talked about for example at the airport. … It is not supposed to be able to prevent you from voting, but I think it can cause problems that you have to be prepared to deal with. … If you don’t look like the gender they are expecting to see, you should anticipate some push-back. But again there’s no rule that you have to present as a particular gender in order to vote at all. So my advice is not, “Don’t cross-dress when you want to go vote,” but be prepared for these things. Be prepared to show whatever forms of ID you have that document who you are or simply explain this. Because honestly, you explain this to someone and they take their double-take look and they realize, “Oh, OK,” and that’s supposed to be the end of it. You should not be denied the opportunity to vote.

TGI: What else should CD men be on the look-out for?
MS: I think one that’s a big one is Stuff You Didn’t Prepare For. And within the Stuff You Didn’t Prepare For category, let’s say you’re out cross-dressing one night and something happens to you and you end up in the hospital. What happens there? You’re brought to the hospital, looking female, and whether you pass as female or you don’t, whether you’re awake or not awake, there may be a moment where the doctors and nurses and hospital staff figure out that you’re not female, you’re male. And are there instances of discrimination when this happens? Of course there are! And is it illegal in certain jurisdictions? It is very much illegal for a hospital or for any health care provider to behave in a discriminatory manner. And that’s not an arena where people often realize that there’s discrimination that goes on, that people may not want to serve you because you’re a cross-dresser. And that does happen and we get a lot of calls about it. And so I always liked to emphasize that the health care setting can be awkward.

For example, you’re sitting in the emergency room and you’re cross-dressed and they called out your real name to which you were brought into the hospital and suddenly the whole room knows you’re cross-dressing and some people may not care, but some people do. And certainly in an ideal world, one wants a little bit of control over when one comes out to people. In this setting, sometimes you lose that control.

Michel Silverman and the TLDEF combat discrimination against transgender people wherever it arises. If you believe that you’ve been discriminated against because of your gender identity or expression, contact them.

*For further reading on being pulled over and flying in drag, check out The Girl Inside’s recommended reading:

Getting Pulled Over (Crossdressers.com)
Flying enFemme (Crossdressers.com)
Transgender Legal Information

Header Image Credit: Ms. Katie

Tagged as: enfemme, flying, law, rights, travel