The author had many groups make important contributions to writing this piece and would in particular like to thank Nick Cordova, and the James Wilson Institute Alumni conferences attendees without whose help this paper would be much less than it is.
The nuances of cross-dressing and drag shows might once have seemed too counter-cultural and esoteric for the Supreme Court, but after the debates in United States v. Skrmetti, these questions, at least insofar as how they relate to transgenderism, are front and center.[1]
At oral argument in Skrmetti, Counsel from the ACLU, Chase Strangio, argued that individuals who identify as transgender are a suspect class entitled to heightened protection under the Equal Protection clause.[2] In support, Strangio pointed to bans on cross-dressing as evidence of a history of de jure discrimination against people who identify as transgender.[3] Strangio’s point was not fully answered during the oral argument, so the issue remains: Did laws against cross-dressing constitute discrimination against transgender individuals?
The question of construing cross-dressing bans to apply to transgender persons is significant because of the present state of anti-discrimination jurisprudence.[4] In order to qualify for special protection under the law, i.e. heightened scrutiny of laws affecting a given group, that group must show that they have protected status.[5] To achieve such protection, the group must show several factors, including a history of de jure discrimination.[6]
The unanswered question from Skrmetti is therefore whether transgender persons can claim a history of de jure discrimination using anti-cross-dressing legislation.
Many legal scholars have answered yes.[7] At first blush, the transgender-cum-cross-dresser seems sensible: transgender individuals were born into a sex different than the one they project in everyday life, and thus they wear clothes that do not align with their sex. These facts appear to make them cross-dressers.
The truth of the matter is more complex, however, and legal scholars who adopt the above position are deeply mistaken. There are a variety of points on which their argument fails, and a simple examination of each phenomenon and understanding what they do and do not have in common demonstrates how such an argument fails.
When analyzed, their commonalities, while superficially alluring, are in fact engulfed by their differences. The result is that past laws prohibiting cross-dressing cannot constitute legal discrimination against transgender individuals. This fact is easily demonstrated by a simple exercise in logic:
When two groups exist, for discrimination against one to constitute discrimination against the other, those two groups must be shown to be the same or at least substantially similar.[8]
While this point is not a fundamental element of the law of discrimination, it is a fundamental element of common sense. If one takes two unrelated groups, say bakers and candlestick makers, and there is no real relationship between the two, then discrimination against a baker cannot be discrimination against a candlestick maker, no matter how intense the discrimination against the baker might be.
Likewise, if discrimination existed in the past, before the Industrial Revolution, against a blacksmith, one cannot assume that such discrimination exists today against individuals who work in a steel foundry. While the jobs are superficially similar, they are in fact different, existing in different social, political and legal circumstances.[9]
By the end of this essay, I will demonstrate that there is no greater relationship between cross-dressers and transgender individuals today than between the baker and the candlestick maker of yesteryear. I will also show that the hypothetical historical discrimination against blacksmiths and its inapplicability to steel foundry workers is exactly analogous to the hypothetical historical discrimination against cross-dressers and its inapplicability to transgender individuals today. When the laws against cross-dressers were passed, transgenderism did not exist, just as steel foundries did not exist during the days of blacksmiths.
Cross-Dressing Confusion
We begin with cross-dressing,[10] which is far easier to understand and define than transgenderism.
Cross-dressing is wearing clothing of the opposite sex,[11] meaning a man donning a woman’s dress or a woman donning a man’s suit.[12] It is a sexually incongruous presentation of the self to others.
One important and remarkable aspect of cross-dressing, especially when considering transgenderism, is that cross-dressing is temporary. One cross-dresses for a particular purpose to accomplish a particular end. Examining the most well-known and likely most typical examples of cross-dressing, cross-dressing as a performance, highlights this fact.
The feminist and post-gender scholar, Judith Butler, has spent a great deal of time analyzing this aspect of cross-dressing, particularly as it relates to the performance of drag queens.[13] Butler observes that cross-dressing is a substantially dissimilar act from transgenderism because while transgenderism relies on combining, confusing or even erasing the sexual binary separating male and female, cross-dressing “plays” with that distinction by juxtaposing the performance of an individual in with the that person’s sex, creating a conflict between biological fact and social presentation.[14]
In other words, cross-dressing is “gender play” precisely because a person’s behavior is different from who they are, meaning that one must have a concrete and fixed mental picture of what it means to be male and female to engage in cross-dressing and one must further be able to juxtapose, contrast and manipulate the dual functions of socially-based gender and biologically-based sex to create interesting and even exotic performances.[15]
While drag shows are not the only form of cross-dressing, almost all other forms of cross-dressing partake of both its reliance on the sexual binary and its temporary nature.
One might consider the robust history of cross-dressing as humor or spectacle. For example, the movie Mrs. Doubtfire where the actor Robin Williams plays a cross-dressing nanny in order to spend time with his children is an excellent example of cross-dressing as humor where not only are the sexual identities and differences between men and women reinforced and emphasized for their comedic value, but there is no question of troubling or disturbing the distinction between male and female.[16] It is cross-dressing, without “gender play.”
Cross-dressing in performance roles can also be about protecting gender roles. During the Elizabethan era, boys would cross-dress as women in plays. They did this to protect and prevent actual women from having to engage in public spectacles and acts that were viewed as shameful.[17] Thus, the strict gender and sexual roles of Elizabethan society promoted cross-dressing to reinforce norms.
Cross-dressing also has functional utility in performance. One thinks most obviously of the “trouser roles” in opera, roles that were either written for a mezzo-soprano’s vocal range or for castrati who are no longer available to sing.[18] Women routinely sing these roles because they have a range that men’s voices simply cannot reach.[19]
Cross-dressing is not merely about performance. Historically, it has also been viewed as essentially intertwined with homosexuality.[20] Before homosexuality and heterosexuality were understood as identities, the relationship between sexual preference and gender role was identical.[21] This identity is the course of the much maligned question to gay individuals, one rarely asked these days, about which member of the couple is “the man” and which “the woman.” This question is rooted in an epistemic and ontological understanding of human sexual relations that roots sexuality into one’s physical sex.
In such a world, which existed when cross-dressing laws were enacted in the late 19th and early 20th centuries, to control an individual’s cross-dressing was to control their sexuality. In other words, laws passed controlling cross-dressing functioned in conjunction with anti-sodomy laws, making them primarily concerned with homosexuality.[22]
Transgenderism
While cross-dressing has a history as long as men could wear women’s clothing and vice-versa, transgenderism[23] is an infant, emerging only within the last century. This recency comes in part because transgenderism requires a very particular view of human biology, psychology and nature that is distinct to contemporary Euro-American society.
Transgenderism has its origins not as a perspective on gender or even human biology but rather emerged as a therapeutic treatment for a disorder now called gender dysphoria.[24] While transgenderism has expanded beyond gender dysphoria, the origins of transgenderism are nonetheless rooted in its medical concerns.[25] Consequently, to understand the nature of transgenderism, one must understand the origins and development of what we now call gender dysphoria as a medical condition.
What we call gender dysphoria initially emerged in the late nineteenth and early twentieth centuries.[26] Medical categorization of gender dysphoria developed amidst the creation of sexology, or the scientific study of sexual intercourse and gender.[27] Sexologists, as they were called, increasingly looked at homosexuality and other non-heterosexual forms of sexual activity as objects of scientific inquiry of their own right.[28] This scientific perspective marked a shift in previous considerations of such sexual behavior, which was almost wholly moralistic.
When these early sexologists began examining homosexuality and cross-dressing, they noted that some individuals seemed to have an identification with the opposite sex that went beyond simple erotic excitement.[29] These individuals either wished to inhabit the lives and bodies of the opposite sex or were simply uncomfortable with their own.[30] This discovery caused these sexologists to create a new category of what was then a mental illness, but one that we now call gender dysphoria.
Gender dysphoria was a problem with either an impossible or simple solution, depending on one’s perspective: sexologists determined that one could theoretically eliminate gender dysphoria by changing the gender of the individual, going beyond any cross-dressing fantasies to reach down to the roots of a presumed identity crisis (a concept that developed simultaneously within psychology and would heavily inform the idea of gender identity that helped underpin ideas regarding transgenderism).[31]
Gender-changing therapy began in Germany during the culturally experimental Weimar Republic and contemporaneously in Denmark.[32] The rise of Naziism put an end to Weimar’s cultural experimentations and therapies that sought to change an individual’s gender ceased until their revival in the United States.[33]
Under the influence of European trends of science, psychiatry, and psychoanalytic theory, American medical doctors and psychologists in the early post-war years began to consider the issue of individuals who felt that they had been born in the wrong body.[34] They resumed their earlier European colleagues’ efforts but picked the thread up with the greater advances in understanding hormones and plastic surgery techniques that American medical science had uncovered in the decades since the previous work.[35]
Americans were the first to establish actual clinics providing medical gender transitions to with the initial institute being established in the 1960’s at Johns Hopkins University in Baltimore.[36] Similar institutes opened elsewhere within the same decade.[37]
In the decades after clinics began conducting gender transition treatment and surgeries, the patients experiencing such treatment lived in a kind of limbo. Very few people were familiar with the concept of a gender transition.[38] It was clear that these patients were not fully converted into the opposite sex as certain traits remained from their birth sex, to include the genital anatomy that people undergoing treatment may or may not maintain.[39] Their social experience placed them in a social and legal liminal status where patchwork systems existed that sometimes recognized transition and sometimes did not or would recognize them only if certain conditions were met.[40] It was in this context that Virginia Price, a transgender person, coined the term “transgender” to frame a proper social description for this group.[41]
At the same time that these individuals were becoming increasingly numerous, social scientists and others began to develop theories that questioned the inherent ties between gender and sex.[42] Increasing numbers of gender theorists like Judith Butler, Donna Harraway and others, began to consider both gender and sex to be either fluid or constructions of the self, a kind of sociological pastiche of different traits.[43]
These categories’ fluidity raised the possibility of moving between them. When these theorists considered individuals being treated for gender dysphoria, they found the perfect exemplars of their newly developed ideas in the flesh, and thus the category of “transgender” was created, i.e. individuals who had undergone medical treatment that attempted to remove them from their birth gender and encode them into a different gender category.[44]
Such individuals were not cross-dressers nor were they driven by erotic desire but instead inhabited the no-person’s land of sex and gender subject that appealed these thinkers’ theoretical activities. Transgender people were individuals who did not simply dress like a sex opposite from their own, but engaged in medical treatments with the end goal of becoming the other sex or gender. Transgenderism is thus transformative in a way the cross-dressing is not. Likewise, transgenderism emerged within the scientific and social context of the twentieth century and is restricted to that particular milieu in ways cross-dressing is not. Transgenderism has an origin at a specific point in time while cross-dressing does not.
Rejection of the Connection Between Transgender and Cross-Dresser
The incongruity between cross-dressing and transgenderism is reflected not just in the inherent differences in the categories, but in the discussion of the transgender and cross-dressing community itself where strong lines are drawn separating the one from the other.
Several foundational authors to our contemporary understanding of gender argue that cross-dressing and transgenderism are distinct phenomenon. The most prominent is Judith Butler, a scholar of philosophy whose work underpins much of the gender conceptual framework. For Butler, cross-dressing is reinforced by the “[n]otion of an original or primary gender identity,” which cross-dressing “parodies.”[45] Thus, the act of cross-dressing necessarily involves acknowledging the anatomical sex of the performer since it contrasts the cross-sex performance with this “original” or “anatomical” sex.[46]
Cross-dressing is primarily a performance. American historian Joanne Meyerowitz puts the distinction succinctly:
Transsexuals are also understood to differ from transvestites or crossdressers, who dress in the clothes of the other sex, but do no necessarily hope to change the sex of their bodies[47]
Performative cross-dressing contrasts with transgenderism, which is rooted at the core of an individual’s identity and is not merely a performance, but a sustained way of life.[48] Cross-dressing may be a thing a transgender individual does on the way to transition, but it is merely a component of the whole and constitutes a separate phenomenon.[49]
Medical clinics and specialists differentiate the two on a treatment basis.[50] For example, one “leading provider[] of gender-affirming surgery” explains that “[m]any believe transgenderism and cross-dressing are exactly the same, but this couldn’t be further from fact.”[51]
Advocacy organizations take a similar line.[52] One explains that there are “nuanced differences between crossdressing as an expressive act and identifying as transgender, an intrinsic sense of self.”[53]
Transgender individuals themselves react strongly to the conflation, including with a sense of anger and indignation that they should be compared to cross-dressers, highlighting the difference between the two groups.[54] According to one of these transgendered individuals, “I was offended because that comparison amounted to calling my identity a performance…Drag is a choice, whereas being trans is something we’re born into.”[55] Strangio describes the experience of being transgender as “so core to who we are.” Strangio continues, “I can’t explain it in words, these visceral core feelings — just like many things that people don’t understand until they feel them — inherent to who we are.”[56]
Educational organizations reinforce the distinction between the two.[57]
Even large media organizations like the BBC recognize the distinction between cross-dressing and transgenderism.[58]
These sources highlight these two phenomena as distinct, asserting that cross-dressing is a highly transitory act while transgenderism is fixed in a person’s identity. Transgenderism is therefore perceived as more than an act; it is a component of the self which one has whether one wills it or not.
Conclusion
We must ask ourselves, given all that’s been said, are cross-dressing and transgenderism the same thing? The answer must be no, they are not the same thing. They are, in fact, completely different.
The difference between cross-dressing and transgenderism has deep consequences for its legal identity. If cross-dressing and transgenderism are different things, then bias against one cannot run to bias against the other. One may, for example, hate police officers and therefore treat African-American police officers discriminatorily, but that does not mean that one is discriminating against an African-American. Likewise, to use our examples earlier in the paper: just because laws were passed against a group in the past (we said blacksmiths earlier, but we may now take cross-dressers) does not imply discrimination today (we said steel foundry workers earlier, but we may now take transgendered individuals).
Transgender individuals may engage in cross-dressing at some stage of their transition, but such behavior is not performative but is done to realize some aspect of their self-identity. It is not something they, according to the theory, choose to do, but something related to who they are.
Consequently, while they may have incidentally been caught in the laws against cross-dressing (if we assume that transgender individuals existed during this period, which is not a clear assumption as the above argument makes clear), then this restriction was only incidental to the transgender person’s activities and life. In fact, once the transition was in process, such a person under the gender dysphoria model, should not be viewed as a cross-dresser at all, but as expressing their “authentic” or “true” gender identity. Thus, historic laws against cross-dressing do not represent a tradition of de jure discrimination against transgender individuals.
[1] E.g. Balls and Strikes, The Conservative Justices Know Nothing About the People Whose Lives They Are Trying to Ruin, https://ballsandstrikes.org/scotus/skrmetti-oral-argument-recap (Last visited, Nov. 17, 2025); Erin in the Morning, Amy Comey Barrett Surprised by History of Cross-Dressing Laws Targeting Trans People, https://www.erininthemorning.com/p/amy-coney-barrett-surprised-by-history (Last visited Nov. 17, 2025); Law Dork, With trans care—and lives—in the balance, justices debate Tennessee ban, https://www.lawdork.com/p/skrmetti-supreme-court-arguments-trans-care-bans (Last visited Nov. 17, 2025); National Center for LGBTQ Rights, Reasons for Hope, https://www.nclrights.org/a-message-from-shannon-minter-on-u-s-v-skrmetti (Last visited Nov. 17, 2025); Amy Howe, SCOTUS Blog, Supreme Court appears ready to uphold Tennessee ban on youth transgender care, https://www.scotusblog.com/2024/12/supreme-court-appears-ready-to-uphold-tennessee-ban-on-youth-transgender-care (Last visited Nov. 17, 2025).
[2] Transcript of Oral Argument at 79-80, 82-83, 89-91, 96-97, 111-112, U.S. v. Skrmetti, No. 23-477 (U.S. Dec. 4, 2024).
[3] Id at 90, 110-11.
[4] Kate Redburn, Skrmetti Beyond Scrutiny, 139 Harv. L. Rev. 167, 167-172, 175-181 (2025); Tracy Turner, Gender-Affirming Healthcare Bans as a Hybrid Equal-Protection and Substantive Due Process Problem, 54 Sw. L. Rev. 341 (2025); Kaleb Byars, Bostock: An Inevitable Guarantee of Heightened Scrutiny for Sexual Orientation and Transgender Classifications, 89 Tenn. L. Rev. 483 (2021-22).
[5] U.S. v. Skrmetti, 605 U.S. 495, 509-10 (2024).
[6] Id, 553-557 (Barrett, J. Concurring).
[7] See E.g., Kate Redburn, Before Equal Protection: The Fall of Cross-Dresing Bans and the Transgender Legal Movement, 1963-86, 40 (4) L. and Hist. Rev. 679, 679-723 (November, 2022); Jennifer Levi & Daniel Redman, The Cross-Dressing Case for Bathroom Equality, 34 Seattle U. L. Rev. 133, 151-163 (20210-2011); Jacobin, Clare Sears, This Isn’t the First Time Conservatives Have Banned Cross-Dressing in America, https://jacobin.com/2023/03/cross-dressing-law-united-states-history-drag-bans (Last visited Nov. 17, 2025); Drag Queens, the First Amendment, and Expressive Harms, 137 Harv. L. Rev. 1469 (2024).
[8] While “substantially similar” appears in many Equal Protection cases, the boundaries and exact nature of this phrase remain ambiguous and unsettled, often inserted into decisions in a way that begs the question of its meaning. See e.g. Engquist v. Or. Dept. of Agr., 553 U.S. 591 (2008) (Where the phrase “similarly situated” is repeated without any analysis of its meaning); Nordlinger v. Hahn, 505 U.S. 1, 21 (1992) (Where Justice Thomas engages in a deep factual analysis of state legislative decisions rather than developing a theory of similarly situated entities in the abstract); Plyler v. Doe, 457 U.S. 202, 216 & 231 (1982) (Determining that state legislatures primarily determine what is “different” and the “same,” and where Justice Marshall in a concurrence endorses “the wisdom of rejecting a rigidified approach to equal protection analysis”); Klinger v. Dept. of Corr., 31 F.3d 727 (8th Cir. 1994) (Where the Court conducts an exhaustive factual analysis and discussion of whether groups are similarly situated without determining a generic legal standard for the process); B.P.J. by Jackson v. W.Va. State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024) (Where different judges bitterly disagree on the facts of a similarly situated analysis but use no formally determined process to make the relevant distinctions).
Significantly for the question at hand men and women are not necessarily considered a “similarly situated” group as the biological differences between the two sexes can allow different legally acceptable results under an intermediate scrutiny analysis, a fact which has important bearing for transgender cases. E.g. Nguyen v. I.N.S., 533 U.S. 53, 61-68 (2001); Adams by and through Kasper v. Sch. Bd. of St Johns Cnty, 57 F.4th 791, 800-01 (11th Cir. 2022).
Because of this ambiguity, I use here a simple, common-language definition of “substantially similar,” meaning two groups that share enough characteristics that one could in most situations be mistaken and inserted in place of the other.
[9] It is true that under Disparate Impact Theory, a group may claim to have suffered indirect discrimination by noting the discriminatory effect of a law passed without the intent to discriminate against that particular group. E.g. Tex. Dept. of Hous. & Comty. Affairs, 576 U.S. 519,530-547 (2015); Griggs v. Duke Power Co., 401 U.S. 424, 429-31 (1971). The relevant question for the present analysis is whether such indirect, unintentional discrimination as Disparate Impact by definition entails can qualify for the de jure discrimination that justifies suspect class analysis as described by Justice Barrett in her Skrmetti concurrence. Skrmetti, 555-56 (Where Justice Barrett discusses de jure discrimination using words like “stereotype” or “animus” that necessarily imply intentionality).
Supreme Court precedent suggests that the indirect discrimination that Disparate Impact involves does not involve de jure discrimination. In support of such a point, one might consider Smith v. City of Jackson, Miss. where the Supreme Court opined that Disparate Impact Analysis is applicable to age under the Age Discrimination in Employment Act of 1967. 544 U.S. 228, 233-240 (2005). Despite the recognition of a potential Disparate Impact claim for age, age is not considered a suspect or even quasi-suspect class. Skrmetti, 511 (Holding that classifications based on age are only subject to rational-basis review, meaning that it is not a suspect class).
Thus, simply being subject to a Disparate Impact claim cannot justify de jure discrimination, meaning that any potential disparate impact from anti-cross-dressing laws cannot justify de jure discrimination against transgender persons.
[10] I use the term “cross-dressing” here. This term is the most popular in contemporary use. In the past, people also used the term “transvestite.” This term has generally fallen into opprobrium and therefore is little used today, but one may consider the terms as interchangeable.
[11] We use sex in this essay to mean the sex one is born into, sometimes called “assigned at birth.” It is a biological phenomenon constituted by chromosomes, genetics, hormones and anatomy that together to make an individual male or female.
[12] For a common definition, e.g. Merriam-Webster, Cross-Dressing, https://www.merriam-webster.com/dictionary/cross-dressing (Last visited Dec. 1, 2025). For more specific definitions by cross-dressing advocates, e.g. ACLU of New York, NYCLU, LGBTQ Youth – The Glossary of Terms, https://www.nyclu.org/migrated-page/lgbtq-youth-glossary-terms (Last visited Dec. 1, 2025); What’s On!Queerbc.com, What is a Crossdresser? Understanding the Identity and Practice, https://www.whatsonqueerbc.com/woq-champion/what-is-a-crossdresser (Last visited Dec. 1, 2025).
[13] E.g. Judith Butler, Undoing Gender (2004); Judith Butler, Gender Trouble (1999); Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, Theatre Journal, Vol. 40, No. 4, 519-31 (Dec. 1998).
[14] Butler, Gender Trouble, 174-75; Performance Acts, 527.
[15] For a discussion of the concept of “gender play” as used by Butler as applied to a specific context, see Jospeh Harris, What Butler Saw: Cross-dressing and Spectatorship in Seventeenth Century France, Paragraph, Vol. 29, No. 1, 67-77 (March 2006).
[16] Mrs. Doubtfire (Chris Columbus dir., 1993).
[17] Kat Leon, Vanguard, Portland State University Shakespeare, cross-dressing, and the joy of live-theater, https://psuvanguard.com/shakespeare-cross-dressing-and-the-joy-of-live-theater/ (Last visited Dec. 1, 2025).
[18] Ellen MacDonald-Kramer, La Folia, Women in Trousers: A Very Brief History of a Bizarre Tradition, https://www.lafolia.com/women-in-trousers/ (Last visited Dec. 1, 2025).
[19] Id.
[20] Redburn, Before Equal Protection, 685, 690, 694-95; Joanne Meyerowitz, How Sex Changed: A History of Transsexuality in the US, 7 (2002) (Discussing how “Hermaphrodites,” “transsexuals” and “homosexuals” had been lumped together prior to the mid-twentieth century); American Psychiatric Association, Gender Dysphoria Diagnosis, https://www.psychiatry.org/psychiatrists/diversity/education/transgender-and-gender-nonconforming-patients/gender-dysphoria-diagnosis#:~:text=With%20the%20release%20of%20DSM,marginalization%20of%20gender-variant%20people (Last visited, Dec. 1, 2025) (Stating that “Magnus Hirschfield is credited as among the first physicians to distinguish between same-sex attraction and “transsexualism).
[21] Id.
[22] Redburn, Before Equal Protection, 681-82.
[23] “Transgenderism” in this essay encompasses both that concept and the older term “transsexual.” Both terms are generally synonymous, though different groups will use them with different levels of specificity. See e.g. MedicalNewsToday, Transgender vs. ‘transsexual, https://www.medicalnewstoday.com/articles/transgender-vs-transexual (Last visited Dec. 1 2025) (Using them more or less interchangeably, but considering “transgender” as more appropriate and less offensive than “transsexual.”); Intersex Sociaty of America, InterACT, What’s the difference between being transgender or transsexual and having an intersex condition? https://isna.org/faq/transgender/ (Last visited Dec. 1, 2025) (Using the terms interchangeably); Healthline, Is there a Difference Between Being Transgender and Transsexual? https://www.healthline.com/health/transgender/difference-between-transgender-and-transsexual (Last visited Dec. 1, 2025) (Defining “transgender as a more general and less offensive term while “transsexual” means a medical change in sex); GLAAD, Glossary of Terms: Transgender, https://glaad.org/reference/trans-terms/ (last visited Dec. 1, 2025) (Stating that “transsexual” is an older, medical term that is currently offensive); GraceMed, Transvestite, Transsexual, Transgender: What’s the Difference?, https://www.topsurgery.ca/blog/transvestite-transsexual-transgender-whats-difference (Last visited Dec. 1, 2025) (Defining “transgender” as someone who identifies with the opposite sex while “transsexual” is someone who has received medical treatment to change their physical anatomy); Meyerowitz, 10 (Stating that “transsexual” is a subset of “transgender.”)These differences are unimportant for the present essay, which uses a single term for both.
[24] The history and present state of “Gender Dysphoria” is extremely complicated and too involved to repeat here, consequently, a brief sketch will have to suffice. The initial terms to describe individuals who wished to change their sex was simply “transsexual.” American Psychiatric Association, Gender Dysphoria Diagnosis. The DSM first identified “transsexualism” in 1980. Id. While the term “transsexual” obtained for many years, the treating community eventually felt uncomfortable with this terminology.
In the 1970’s a psychiatrist named Fiske coined the term “gender dysphoria” to describe the conditions transsexuals experienced in a more varied way, with transsexualism being merely the most extreme example. Reidar Schei Jessen, University of Oslo, Gender dysphoria, https://www.stk.uio.no/english/research/pride/gender-dysphoria.html (Last visited Dec. 1, 2025). Norman Fiske, Gender Dysphoria Syndrome – The Conceptualization that Liberalizes Indications for Total Gender Reorientation and Implies a Broadly Based Multi-Dimensional Rehabilitative Regimen, The Western Journal of Medicine, Vol. 120, No. 5, 386-91 (May 1974). In 1994 with the DSM-IV, “transsexualism” was replaced with “gender identity disorder in adults and adolescents” in an attempt to “reduce stigma.” American Psychiatric Association, Gender Dysphoria Diagnosis. In 2013 with the DSM-5 the tern was changed to “gender dysphoria” with a further change in diagnosis. Id. The DSM further clarified that:
The presence of gender variance is not the pathology but dysphoria is from the distress caused by the body and mind no aligning and/or societal marginalization of gender-variant people. Id.
The DSM further clarified that “gender non-conformity is not in itself a mental disorder.” Id. This change left the taxonomic situation in a bit of a muddle with two forms of gender non-conformity: one, Gender Dysphoria, which came with symptoms of discomfort and was diagnosable under the DSM and second form that was simple non-conformity which requires treatment to address but itself is not diagnosable that is referred to variously as Gender Incongruence, Gender Nonconformity and or other terms. See e.g. George R. Brown, M.D., MSD Manual, Gender Incongruence and Gender Dysphoria, https://www.msdmanuals.com/home/mental-health-disorders/gender-incongruence-and-gender-dysphoria/gender-incongruence-and-gender-dysphoria, (Last visited Dec. 1, 2025).
For the sake of simplicity, these terms are collapsed into “gender dysphoria” in this essay.
[25] See note 25 supra.
[26] For a broad, general history see Meyerowitz, A History of Transsexuality in the US; Melanie Fritz & Nat Mulkey, American College of Surgeons, The rise and fall of gender identity clinics in the 1960s and 1970s, https://www.facs.org/for-medical-professionals/news-publications/news-and-articles/bulletin/2021/04/the-rise-and-fall-of-gender-identity-clinics-in-the-1960s-and-1970s/ (Last visited Dec. 1, 2025); N.C. Capetillo-Ventura, S.I. Jalil-Pérez, K. Motilla-Negrete, Gender dysphoria: An overview, Medicina Universitaria, Vol. 17, No. 66, 53-58, 53 (January-March 2015); Jack Dresher, MD, Transsexualism, Gender Identity Disorder and the DSM, Journal of Gay & Lesbian Mental Health, Vol. 14, 109-122 (2010).
[27] Drescher, 111; Meyerowtiz, 14-50; Copetillo-Ventura et al, 54.
[28] Drescher, 111; Meyerowtiz, 14-50; Copetillo-Ventura et al, 54.
[29] Drescher, 111; Meyerowtiz, 14-50; Copetillo-Ventura et al, 54.
[30] Drescher, 111; Meyerowtiz, 14-50; Copetillo-Ventura et al, 54.
[31] Drescher, 111; Meyerowtiz, 14-50; Copetillo-Ventura et al, 54.
[32] Drescher, 111; Meyerowtiz, 14-50; Copetillo-Ventura et al, 54.
[33] Meyerowitz, 21.
[34] Meyerowitz, 29-31, 48-50.
[35] Meyerowitz, 21.
[36] Drescher, 114; Meyerowtiz, 142.
[37] Meyerowitz, 147.
[38] See Meyerowitz.
[39] Id.
[40] Id.
[41] Dresher, 110.
[42] Meyerowitz, 98-129; Drescher, 112-116.
[43] See e.g., Drescher, 113-14; Butler, Undoing Gender; Performative Acts; Donna Harroway, Feminism and Technoscience (1997); Donna Haraway, A Manifesto for Cuborgs: Science, Technology and Socialist Feminism in the 1980s, Socialist Review, Vol. 15, No. 2, 65-107 (1985) (Attacking the sexual dichotomy of male and female).
[44] See e.g. Butler, Gender Trouble, xi, xxii, 90;
[45] Butler, Gender Trouble, 174.
[46] Id.
[47] Meyerowitz, 10.
[48] Butler, Gender Trouble, 90.
[49] Id.
[50] E.g. Natalia Zhikhareva, Dr. Z., Ph.D, https://drzphd.com/dr-z-phd-live-videos/crossdressing-vs-trans-identity-whats-the-main-difference (Last Visited Dec. 1, 2025); Feminization Surgeries, https://feminizationsurgeries.com/blog/difference-between-transvestite-and-transgender (Last Visited Dec. 1, 2025) (Using the term “transvestite” rather than “cross-dresser”); Dr. Liz Powell, what’s the difference between a crossdresser and someone who is trans?, https://drlizpowell.com/whats-the-difference-between-a-crossdresser-and-someone-who-is-trans/ (Last visited Dec. 1, 2025).
[51] GraceMed, https://www.topsurgery.ca/blog/identifying-difference-transgenderism-cross-dressing, (Last Visited Dec. 1, 2025).
[52] E.g. Advocates for Trans Equality, Understanding Drag, https://transequality.org/issues/resources/understanding-drag (Last Visited Dec. 1, 2025); Pratisandhi, Drag Artists v. Crossdressers v. Transgender People: Not as Similar As One Might Think, https://www.pratisandhi.com/drag-artists-vs-crossdressers-vs-transgender-people-not-as-similar-as-one-might-think/ (Last Visited Dec. 1, 2025); Rebecca Jane Stokes, Your Tango, What’s The Difference Between a Crossdresser, Drag Queen, And Being Transgender? https://www.yourtango.com/2017308413/whats-difference-between-crossdresser-drag-queen-and-being-transgender (Last Visited Dec. 1, 2025); Revel and Riot, LGBTTIQQ2SAA+ Definitions, https://www.revelandriot.com/resources/lgbtq-and-trans-definitions/ (Last Visited Dec. 1, 2025); Steph, TransLucent, Crossdressers – cis or trans?, https://translucent.org.uk/are-crossdressers-cisgender-or-transgender/ (Last Visited Dec. 1, 2025).
[53] TransVitae, Cross Dressing v. Trans Identity, Unraveling the Confusion https://www.transvitae.com/crossdressing-vs-trans-identity-unraveling-the-confusion (Last Visited Dec. 1, 2025).
[54] The Asexual Visibility and Education Network, Forum, Explaining the difference between cross-dressers and transgenders, https://www.asexuality.org/en/topic/139179-explaining-the-difference-between-cross-dressers-and-transgenders/ (Last Visited Dec. 1, 2025); The Asexual Visibility and Education Network, Forum, Do you consider crossdressing as transgenderism?, https://www.asexuality.org/en/topic/87629-do-you-consider-crossdressing-as-transgenderism/ (Last Visited Dec. 1, 2025) (Which contained a poll that on 1 Dec. 2025 showed approximately 95% of voters either answered the question “No,” 57.14% or some answer other than “Yes”)
[55] HPR, The Difference Between Drag and Transgender,https://hpr1.com/index.php/feature/culture/the-difference-between-drag-and-transgender (Last Visited Dec. 1, 2025)
[56] Ross Douthat & Chase Strangio, The New York Times The Shifting Politics of transgender Rights, https://www.nytimes.com/2025/12/04/opinion/transgender-rights-strangio-douthat.html (Last Visited Dec. 5, 2025).
[57] E.g. University of Montana, https://www.montana.edu/safezone/documents/Terminology.pdf (Last Visited, Dec 1. 2025) (Defining various terms including “Cross-dresser” and “Transgender.”); American Psychological Association, https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression (Last Visited Dec. 1, 2025); University of California Davis, https://lgbtqia.ucdavis.edu/educated/glossary (Last Visited Dec. 1, 2025) (Definition of Cross Dresser states “carries no implications of sexual orientation or gender identity” while the “Transgender” definition heavily relies on it);
[58] BBC, A guide to transgender terms, https://www.bbc.com/news/magazine-32979297 (Last visited Dec. 1, 2025) (Defining various terms including “Cross Dresser” and “Transgender.”)
