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2026 U. Chi. L. Rev. Online 1 (2026)

handle is hein.journals/uchidial2026 and id is 1 raw text is: 2/22/26 U. Chi. L. Rev. Online *1 A GOOD REASON TO BE SUSPICIOUS: THE U.S. LEGAL HISTORY OF TRANSGENDER DISCRIMINATION Pelecanos, Kat Reilley Harlow, & Aubrey Owen Shiffner* Introduction In the Supreme Court's recent (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. The Essay explores various forms of discrimination that have either been codified in the law or perpetrated by government officials acting under color of law. Each example below stems from government discrimination against people who diverged from state-regulated ideas of sex and gender, and each person was subject to legal consequences based on that divergence. Notably, the targets of this discrimination have been described in varying ways over time. Some of the terms used by lawmakers, administrative agents, and by gender diverse people themselves have since fallen out of popular use, including female or male impersonator, transvestite, and transsexual. Other terms, such as sexual invert encompassed both gender diversity and same- sex desire, and were used in part to describe people who would likely be considered transgender today. Whenever possible, this Essay uses the terms people used for themselves. When a person's self-identification is coerced or unclear, or when referring to the broad category of people targeted for discrimination for failure to adhere to the government-mandated * Pelecanos is an attorney at Lambda Legal. Kat Reilley Harlow is a legal fellow at Lambda Legal. Aubrey Owen Shiffner is a legal intern at Lambda Legal and a J.D. Candidate at Rutgers Law School. They would like to thank Katie Eyer, Marie-Am6lie George, Camilla Taylor, Jenny Pizer, A.D. Lewis, Karen Loewy, Morgan Walker, Paton Moody, and the University of Chicago Law Review Online team.