{"id":24423,"date":"2026-06-12T11:04:24","date_gmt":"2026-06-12T15:04:24","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/?page_id=24423"},"modified":"2026-07-02T11:57:17","modified_gmt":"2026-07-02T15:57:17","slug":"sex-changed-by-a-courts-decree-the-history-and-tradition-of-gender-transitions-in-the-united-states","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/in-print\/volume-114\/volume-114-issue-4-april-2026\/sex-changed-by-a-courts-decree-the-history-and-tradition-of-gender-transitions-in-the-united-states\/","title":{"rendered":"“Sex Changed by a Court’s Decree”: The History and Tradition of Gender Transitions in the United States"},"content":{"rendered":"

In June 2025, the Supreme Court held in <\/i>United States v. Skrmetti that <\/i>bans on gender-affirming care for minors do not violate the Equal <\/i>Protection Clause. The Supreme Court\u2019s decision came after several <\/i>years of laws targeting trans people\u2019s rights to transition and participate <\/i>in public life. As courts decide the constitutionality of these laws, they <\/i>of<\/i>ten turn to questions of history and tradition. These appeals to history <\/i>have become <\/i>even more salient since <\/i>Dobbs v. Jackson Women\u2019s Health Organization, where the Supreme Court argued that fundamental rights <\/i>must be <\/i>\u201c<\/span>deeply rooted in this nation\u2019s history and tradition<\/i>\u201d <\/span>and <\/i>\u201c<\/span>implicit in the concept of ordered liberty.<\/i>\u201d <\/span>Although anti-trans judges <\/i>and litigants have adopted different, and sometimes contradictory, <\/i>approaches to history in Equal Protection and Due Process cases, their <\/i>arguments share a common theme. They claim that no trans people <\/i>existed prior to the late twentieth century. Despite the importance of his<\/i>tory to trans rights cases, few scholars have analyzed trans legal history <\/i>in the 1800s or early 1900s.<\/i><\/p>\n

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

I argue that critical trans legal history is essential to understanding trans <\/i>people\u2019s constitutional rights. I reveal how this history illuminates that <\/i>the right to transition is deeply rooted under the Due Process Clause. <\/i>The legal history of gender transitions can help reconcile the uses of his<\/i>tory in Due Process and Equal Protection jurisprudence. I demonstrate <\/i>that <\/i>this history also supports trans people\u2019s Equal Protection claims. I <\/i>illustrate how trans people relied upon the right to transition gender to <\/i>participate in political processes and public life. This history is particu<\/i>larly important now as both the Trump Administration and state legisla<\/i>tures attack trans people\u2019s right to exist and participate in civic life. <\/i>Trans <\/i>legal history matters<\/i>\u2014<\/span>for constitutional rights arguments, for <\/i>arguing against transphobic legislation, and for showing trans people <\/i>that we have always been here.<\/i><\/p>\n

Continue reading “Sex Changed by a Court’s Decree”: The History and Tradition of Gender Transitions in the United States<\/em><\/strong><\/a>.<\/em><\/p>\n

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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\u2019s decision […]<\/p>\n","protected":false},"author":13871,"featured_media":0,"parent":24413,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-24423","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/24423","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/users\/13871"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/comments?post=24423"}],"version-history":[{"count":2,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/24423\/revisions"}],"predecessor-version":[{"id":24597,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/24423\/revisions\/24597"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/pages\/24413"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/georgetown-law-journal\/wp-json\/wp\/v2\/media?parent=24423"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}