Facts
- Wallace Wilson and Kim Kimberley were arrested in Chicago shortly after leaving a restaurant in February 1974.
- Police observed Wilson wearing a dress, fur coat, stockings, and wig, and observed Kimberley wearing a pants suit, high-heeled shoes, and makeup with a feminine hairstyle.
- At the police station, they were required to pose for photographs while partially undressed; both wore traditionally female undergarments and had male genitalia.
- The City charged them under Chicago Municipal Code § 192-8, which penalized appearing in public “in a dress not belonging to his or her sex, with intent to conceal his or her sex.”
- Both defendants testified they were transsexuals undergoing psychiatric therapy in preparation for sex-reassignment surgery and that the therapy required living publicly in female clothing and adopting a female lifestyle.
- The trial court denied their constitutional motion to dismiss, convicted them after a bench trial, and fined each $100; the appellate court affirmed.
Issues
- Whether Chicago Municipal Code § 192-8, which criminalized cross-dressing with intent to conceal sex, violated constitutional protections of liberty and privacy as applied to transsexual persons undergoing medically supervised therapy for sex-reassignment.
- Whether the City’s asserted interests (preventing deception or fraud, aiding law enforcement identification, preventing restroom-related crimes, and enforcing social norms) justified applying the ordinance to the defendants.
Decision
- The Illinois Supreme Court reversed the appellate and trial court judgments and remanded with directions.
- The court held § 192-8 unconstitutional as applied to Wilson and Kimberley because it impermissibly infringed protected liberty and privacy interests.
- Because the court resolved the case on liberty and privacy grounds, it did not reach additional claims of vagueness, overbreadth, or equal protection violations.
- A dissent would have upheld the ordinance’s application.
Legal Principles
- Personal appearance and dress may fall within constitutionally protected interests in privacy, self-identity, autonomy, and personal integrity, limiting governmental power to regulate such choices.
- When government regulates conduct tied to intimate personal and medical decision-making, it must provide a sufficient justification; a broad criminal prohibition requires more than generalized assertions of public welfare.
- A “total ban” on cross-dressing in public is not justified, as applied here, by asserted interests in preventing deception, improving suspect descriptions, preventing restroom crimes, or enforcing conventional norms.
Conclusion
The Illinois Supreme Court held that Chicago could not constitutionally enforce its cross-dressing ordinance against transsexual defendants who publicly dressed as women as part of medically supervised preparation for sex-reassignment surgery, because the ordinance, as applied, violated protected liberty and privacy interests.