"The prima facie evidence is that she is of the masculine gender": Transgender Encounters with the Law in the Nineteenth Century

In March of 1856, nineteen-year-old Charley Linden’s transgender practices landed him in jail in New York City. Linden had been raised as a girl named Anna, but took on a male identity at the age of fifteen. After four years of living, traveling, and working as a man, Linden ran into trouble with law enforcement. Like many of his cross-dressing contemporaries, Linden faced criminal punishment because police officers took a dislike to his gendered mode of dress. Convinced of his right to live as a man, Linden resisted and launched a legal defense that secured his release.

            My paper examines encounters between the law and individuals, such as Charley Linden, who crossed gender borders in the mid-nineteenth century. Although scholars William Eskridge and Clare Sears have identified a tidal wave of anti-cross-dressing legislation in the post-Civil War era, little is known about the legal status of transgender practices in antebellum America. I argue that, in the antebellum era, newly organized urban police departments profiled gender non-conforming individuals as potential criminals and routinely used vagrancy charges to punish them. I use police and court records as well as newspaper reports of arrests and trials to show how, at a foundational moment in the history of American law enforcement, transgender practices became associated with criminality and precarious economic circumstances. Moreover, individuals who engaged in transgender practices actively resisted criminalization. My paper draws out the legal strategies they employed to challenge oppressive policing practices and assert their right to cross gender borders.