State Statutes

Hawaii

In 1963, Hawaii prohibited “[w]ear[ing] clothing of the opposite sex in any public place with intent to deceive other persons by failing to identify his or her sex.”1 The statute was introduced by a new Subcommittee on Sexual Deviants in partnership with the police, and was directly targeted against Hawaiian trans and māhū people.2 Violations could be punished with a $1,000 fine and up to a year in jail.3 Upon state magistrate judge Frank T. DeMello’s suggestion,4 Hawaiian trans women and māhū donned large colorful buttons stating “I am a boy” to disclaim any “intent to deceive”, a solution generally accepted by police and courts.5 This approach permitted trans women and māhū to avoid violating the statute, but also construed trans identity as deceptive while subjecting Hawaiian transgender and māhū people to public humiliation,6 greater risk of police surveillance,7 denial of public accommodations,8 and violence.9 The law was finally repealed in 1973 during a general liberalization of Hawaii’s “sex laws”.10

New York

New York’s anti-disguise law was originally enacted in 1845 in response to the Anti-Rent movement.11 At the time, a small group of wealthy landowners held massive manor estates across New York, broken up into quasi-feudal “lease-in-fee” parcels, for which tenants owed rent and other services in perpetuity. Landlords were entitled to the “quarter sale”, a portion of the property value should a tenant or any of their descendants sell.12 As manor owners’ fortunes declined, they enforced lease terms more harshly against tenants who were often unable to meet their obligations in the wake of economic depressions and the declining value of former cash crops.13 As a result, widespread revolt against draconian lease terms spread across upstate New York.14 In addition to the movement’s efforts for land reform in the state courts and legislature,15 vigilantes known as “Indians” intimidated and even tarred-and-feathered sheriffs who attempted to enforce the power of the manor owners.16

The “Indians” dressed in elaborate animal masks, donned calico gowns over pantaloons, and brandished an array of weaponry.17 After several people were killed in disputes between the “Indians” and law enforcement, the governor of New York called on the legislature for anti-“Indian” legislation.18 “An act to prevent persons appearing disguised and armed” was promptly enacted “authoriz[ing] the pursuit and arrest of any person who ‘having his face painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent him from being identified, shall appear in any road or public highway, or in any field, lot, wood or enclosure.’”19 The law justified extensive searches and arrests across Anti-Rent movement territory, putting an effective end to “Indian” organizing.20

“Indians” were predominantly young men.21 Vigilante actions gave them an avenue to “affirm their manhood” despite their “[l]acking the usual badges of manhood – property, dominion over wives and children, [and] the vote.”22 Though these men invested in gender conformity were the original targets of New York’s anti-disguise law, the statute was quickly repurposed to target people wearing clothing deemed not to be of their sex. For example, the state law empowered police to arrest Charley Linden in 1856 after an officer deemed him to be a woman wearing male clothing.23 By the mid-20th century, it was widely understood by queer communities in places like New York City and Buffalo, which have no known local cross-dressing ordinances, that police would arrest anyone not wearing at least three articles of clothing of their assigned sex.24 § 887(7) likely helped form the legal foundation for these three-article-of-clothing arrests in New York State.25

As late as the 1960s, criminalization of cross-dressing under the anti-disguise statute continued to be upheld by courts.26 The statute was ultimately repealed in 2020 in response to COVID-19 mask mandates.27

  1. 1963 H.A. S.B. 870. ↩︎
  2. Stephanie Nohelani Teves, The Mahele of Our Bodies 11 (2025); Can’t Tell a Crook by His Cover, Honolulu Star-Advertiser, Apr. 27, 1963, at 4; Bill Would Hit at Transvesting, Honolulu Star-Bulletin, Mar. 20, 1963, at 22. ↩︎
  3. Wes Young, World of the Homosexual: It Persists Despite the Laws Against It, Honolulu Star-Bulletin, Feb. 29, 1964, at 13 . ↩︎
  4. Malcom Barr, Hal Boyle Column, The Solano-Napa News Chronicle, Feb. 5, 1965, at 10; Harriet Gee, Kokua Line, Honolulu Star-Bulletin, July 16, 1980. , at 3. One person who lived in Hawaii during this era states that an owner of Honolulu’s popular drag bar The Glade originally suggested the buttons to Judge DeMello. See Andy Matzner, Voices from Hawai’i’s Māhū and Transgender Communities 66 (2d ed. 2020) (2001). ↩︎
  5. Young, supra note 3; Gene Hunter, Nights are Gayer Now at Sierra Madre, Honolulu Star Advertiser, July 17, 1968, at 17. ↩︎
  6. Mitchell Kuga, Remembering the 1960s Bar That Became a Refuge for Honolulu’s Māhū Community, Them (Aug. 27, 2024) https://perma.cc/NTU2-XPJB. ↩︎
  7. Cops Know Who’s What at Transvestite Hangouts, Honolulu Star-Advertiser, July 2, 1964, at 1-2. ↩︎
  8. Scoops Casey, They Prove, Then Pay Up, Honolulu Star Advertiser, Aug. 12, 1969, at 4. ↩︎
  9. Christine Hitt, ‘I’m a Survivor’: Hawaii’s Third-Gender Mahu Performers Flourished at Legendary Nightclub, SF Gate (Aug. 12, 2022), https://perma.cc/8ZH6-53PS. ↩︎
  10. Teves, supra note 2 at 12. ↩︎
  11. Albert Champlin Mayham, The Anti-Rent War on Blenheim Hill: An Episode of the 1840s at 56 (Centennial ed. 2006) (1906). ↩︎
  12. Charles W. McCurdy, The Anti Rent Era in New York Law and Politics: 1839-1865 at 1, 22-31 (2001). ↩︎
  13. Id. at 12-13; Reeve Huston, Land and Freedom: Rural Society, Popular Protest, and Party Politics in Antebellum New York 46-47 (2000). ↩︎
  14. Huston at 103-08 (2000); Mayham at 31. ↩︎
  15. McCurdy at xiv. ↩︎
  16. Id. at 97, 116-18. ↩︎
  17. Id. at 119. ↩︎
  18. Id. at 147. ↩︎
  19. Church of the Am. Knights of the KKK v. Kerik, 356 F.3d 197, 204 (2d Cir. 2004). ↩︎
  20. Huston at 149-50; McCurdy at 216-21. ↩︎
  21. Mayham at 35-36. ↩︎
  22. Huston at 123. For more on the phenomenon of settler appropriation Native identity and its significance in the formation of American national identity, see Philip J. Deloria, Playing Indian (2d ed. 2022) (1998). ↩︎
  23. Jesse Bayker, Before Transsexuality: Transgender Lives and Practices in Nineteenth-Century America 71-73 (May 2019) (Ph.D. dissertation, Rutgers University) (RUcore). ↩︎
  24. Leslie Feinberg, Transgender Warriors: Making History From Joan of Arc to Dennis Rodman 8 (1996); Audre Lorde, Zami: A New Spelling of My Name 187 (1982). ↩︎
  25. Elizabeth Lapovsky Kennedy & Madeline D. Davis, Boorts of Leather, Slippers of Gold: The History of a Lesbian Community 180, 180 n. 29 (20th anniversary ed. 2014) (1993). ↩︎
  26. Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s at 168-170, 186 (2016). But see also People v. Simmons, 357 N.Y.S. 2d 362 (Crim. Ct. 1974). ↩︎
  27. 2020 N.Y. SB 8415. ↩︎
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