by Scott De Orio
Abstract
In the period of the 1960s through 2015, the U.S. Supreme Court issued a set of canonical, key decisions expanding the constitutional doctrines of sexual liberty and privacy, equality, and substantive due process for women and sexual and gender minorities. The Court interpreted these principles to protect contraceptive use, abortion, interracial marriage, the private consumption of pornography, the old common-law crime of sodomy, and marriage between people of the same sex. This article argues for the importance in the constitutional history of sexual and gender regulation not only of cases that the Supreme Court decided in favor of the women and sexual/gender minority litigants, but also the importance of cases these litigants lost, and even ones the Court declined to hear. One such case was Mayes v. Texas (1974), in which the U.S. Supreme Court denied certiorari in a challenge to the constitutionality of the city of Houston’s criminal law against crossdressing. A close examination of the Mayes case illuminates important aspects of queer constitutional history and the history of grassroots efforts to expand privacy and substantive due process doctrine. First, it reveals one of the ways in which trans people were subject to formal, legal discrimination in the past (laws against crossdressing), and, in the Court’s refusal to hear the case, demonstrates the high bar trans litigants had to overcome to adjudicate their rights. This is especially important because the Supreme Court has recently denied that any such discrimination has ever existed. Second, Mayes v. Texas shows the boundaries of the Supreme Court’s privacy and substantive due process doctrine. The Justices’ decision to decline certiorari was not just a loss for trans-rights activists. It also meant that the right to privacy never extended to transgender expression. Finally, the article illuminates trans activism at the local and state levels as an important venue of legal contestation and constitutional claims-making.