Since Tennessee Gov. Bill Lee signed a bill banning drag performers from “hosting adult-oriented performances harmful to minors,” at least 14 states have proposed similar laws. Such legislation, separate but related to broader skepticism and antagonism among Republican lawmakers toward transaffirmation care, taps into a centuries-long history in the US — and in Los Angeles in particular — of government crackdowns on gender nonconformity.
In the 1800s, there were ordinances in the United States that criminalized “cross-dressing” at the city and state levels. Initially, law enforcement used anti-masquerade laws to enforce the restriction of gender diversity. “This was part of a larger effort to really start regulating people’s gender expression,” explains Dr. Eric Cervini, a Pulitzer finalist and historian who focuses on LGBTQ+ politics. “These laws were originally created to prevent people from disguising themselves and rioting.”
Laws specifically prohibiting men from dressing as women and women from dressing as men emerged as the nineteenth century progressed. Ordinance 5022 in 1898 brought these explicit restrictions to Los Angeles.
Lillian Faderman, a leading scholar of the city’s queer history and co-author of Gay LA: A History of Sex Outlaws, Power Politics, and Lipstick Lesbians, traces the legislation to an annual bacchanal staged in LA in the early 1890s: “The last day of the week-long celebration was All Souls’ Day, kind of like Mardi Gras. People would go wild – that made some residents and visitors of early Los Angeles uncomfortable. That was the beginning of anti-cross-dressing laws in LA. Five years later that became Ordinance 5022.”
The ordinance was selectively enforced, as drag performances were a popular and highly lucrative source of entertainment in the city at the turn of the century. Faderman lists a few chosen stars and venues that took the spotlight over the next several decades: performers like Julian Eltinge and Sir Lady Java and famous drag and gay venues like The Orpheum, Jimmy’s Backyard and BBB’s Cellar. “There was a vaudeville that often featured cross-dressing acts,” explains Faderman. “Some of those transvestites were the highest paid in the vaudeville business. There was the whole idea that cross-dressing was for entertainment. And so in pre-Hayes (the production code that forbids “amoral” themes in film) Hollywood was very well received. Even (Marlene) Dietrich, famously, in Morocco (1930). This was family entertainment – nothing underground. But at the same time, these laws existed. They were just often overlooked.”
Instead, these rulings were used to target actual non-conforming individuals, along with police raids on areas perceived as pick-up areas for gay sex. “If you were a straight man trying to make a straight audience laugh by putting on a woman’s dress, that was perfectly acceptable,” says Cervini. “But if you were a transgender or gender nonconforming person just walking down the street, it was seen as a threat to society, and that would have landed you in jail.”
After the crackdown on queer spaces in the 1950s – and the terrifying regime of extremely homophobic LAPD chief Ed Davis (nicknamed “Crazy Ed”) in the 1970s – androgynous fashion trends in the second half of the century helped maintain the laws criminalizing non-conforming people: “It was hippie style in particular (that made it) a little harder to say you couldn’t wear the clothes of the opposite sex,” says Faderman.
“These kinds of laws (often) stayed on the books, they were never technically repealed,” added Cervini. “They just weren’t enforced anymore. That goes for sodomy laws, for so many different laws in this country.” Trans activist and scholar Alok Vaid-Menon adds that these laws were aimed at “anyone who defies(d) what society thinks a man or woman should look like. It is always about the majority of people conforming to gender norms.”
But not everything. In 1967, LA enacted Rule No. 9, an evolution of Ordinance 5022 that banned drag performances without police permission. That year, after being barred from performing her act at Redd Foxx’s club on La Cienega, transgender performer Sir Lady Java challenged the rule in court along with the ACLU, arguing it violated her right to work . Largely because of her position, Rule No. 9 was repealed in 1969.
Despite the swarm of new state legislation, Faderman is hopeful: “I came out in the 1950s, and those were definitely the worst times ever. Boys were regularly mugged, and as for the psychiatric profession, we were all crazy because we were in the Diagnostic and Statistical Manual of Mental Disorders. To the police, we were all suspected criminals. (But) I’ve seen how we organized and fought and how things got so much better. I think I’m hopeful. We have so many allies.”
Remembering past attacks on the LGBTQ community is an important tool in the fight for future protection, argues Cervini. “Efforts to prosecute gender nonconforming people go back hundreds, if not thousands, of years. This phenomenon that we are witnessing from those in power, who feel their power is fading… they have to rely on some sort of scapegoat. That was true of the Catholic Church in the 11th century, and it is true of the Republican Party now, in 2023.”
A version of this story first appeared in The Hollywood Reporter magazine on April 12. Click here to subscribe.