In her dissent in United States v. Skrmetti, Justice Sotomayor argues that “[t]ransgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” To support that point, she notes that since 1843, cities and small towns including “Vermillion, South Dakota” have enacted ordinances prohibiting or criminalizing public cross-dressing. Since we live in the small town of Vermillion, South Dakota, we found this reference striking.  The quote places our rural college-town home into the unenviable category of municipalities which have enacted ordinances criminalizing cross-dressing, apparently as an early American vehicle for achieving localized anti-transgender legislation. Because the history of de jure discrimination is legally important and because Vermillion’s 1873 ordinance has been thrust into the national conversation, we believe the Vermillion ordinance deserves more study.

This presentation is based on an essay that seeks to explain the Vermillion ordinance referenced by Justice Sotomayor. That explanation will include discussions of historical and modern-day expressions of gender in rural communities. It also will include historical research, including the original 1873 documents from Vermillion.  The essay recognizes that this ordinance was likely grounded in early frontier attitudes about gender roles, and it will describe how those nineteenth century frontier biases translate into twenty-first century discrimination.

Normally, no one would bother to read or write a law review publication about a 153-year-old ordinance from a  rural, small town. However, now that Justice Sotomayor has brought this ordinance to the attention of equal protection scholars, we believe it deserves attention and context.

This essay will not make any argument about whether tiers of scrutiny should exist or what level of scrutiny transgender status should receive. Instead, we hope to accomplish a narrower goal: to fully explain the Vermillion ordinance referenced by Justice Sotomayor. We have obtained the original 1873 documents and hope to include interviews with local historians. This original research—coupled with fully integrating the existing work of historians who have studied cross-dressing laws—will contextualizes the time and place of Vermillion’s Ordinance # 1.  The essay recognizes that Ordinance # 1 was likely grounded in early frontier attitudes about gender roles, and it will describe how those nineteenth century frontier biases translate into twenty-first century discrimination.

Normally, no one would bother to read  or write a law review publication about a 153 year old ordinance from a  rural, small town. However, now that Justice Sotomayor has brought this ordinance to the attention of equal protection scholars, we believe it deserves attention and context.