A Good Reason to Be Suspicious: The U.S. Legal History of Transgender Discrimination

“In the Supreme Court’s recent United States v. Skrmetti (2025) decision, Justice Amy Coney Barrett raised the novel question: Does the United States have a long-standing history of de jure discrimination against transgender people, perpetrated by state actors through the force of law?

This Essay provides the beginnings of an answer to Justice Barrett’s inquiry, demonstrating that throughout the history and geography of the United States, government actors have used the law to discriminate against people who deviate from narrow, essentialist notions of sex and gender. The examples highlighted in this Essay are far from comprehensive, and many more remain to be found. Yet even this preliminary sketch shows how widespread this discrimination has historically been and continues to be today.”