In June 2025, the Supreme Court held in United States v. Skrmetti that bans on gender-affirming care for minors do not violate the Equal Protection Clause. The Supreme Court’s decision came after several years of laws targeting trans people’s rights to transition and participate in public life. As courts decide the constitutionality of these laws, they often turn to questions of history and tradition. These appeals to history have become even more salient since Dobbs v. Jackson Women’s Health Organization, where the Supreme Court argued that fundamental rights must be “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.” Although anti-trans judges and litigants have adopted different, and sometimes contradictory, approaches to history in Equal Protection and Due Process cases, their arguments share a common theme. They claim that no trans people existed prior to the late twentieth century. Despite the importance of history to trans rights cases, few scholars have analyzed trans legal history in the 1800s or early 1900s.

In this Article, I critique the uses of history in recent trans rights cases, and I argue that the right to transition gender is deeply rooted in United States history and tradition. Drawing upon original archival research, I demonstrate that trans people before the 1950s transitioned in many of the same ways that people do today: they changed their legally recognized sexes, they chose new names, they altered their bodies, they donned new wardrobes, and they transitioned their social and legal roles. Many trans people sought both legal and community acknowledgement of their transitions, and they participated in public life and exercised their civil rights. Trans people and even legal authorities defended these transitions as a right, and they connected the right to transition to both liberty and gender equality.

I argue that critical trans legal history is essential to understanding trans people’s constitutional rights. I reveal how this history illuminates that the right to transition is deeply rooted under the Due Process Clause. The legal history of gender transitions can help reconcile the uses of history in Due Process and Equal Protection jurisprudence. I demonstrate that this history also supports trans people’s Equal Protection claims. I illustrate how trans people relied upon the right to transition gender to participate in political processes and public life. This history is particularly important now as both the Trump Administration and state legislatures attack trans people’s right to exist and participate in civic life. Trans legal history matters—for constitutional rights arguments, for arguing against transphobic legislation, and for showing trans people that we have always been here.

Continue reading “Sex Changed by a Court’s Decree”: The History and Tradition of Gender Transitions in the United States.