APPEAL from the Circuit Court of Cook County; the Hon. DAVID
J. SHIELDS, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
After a joint bench trial in the Circuit Court of Cook County the defendants, Wallace Wilson and Kim Kimberley, were convicted of violating section 192-8 of the Municipal Code of the City of Chicago, which prohibits a person from wearing clothing of the opposite sex with the intent to conceal his or her sex. Each defendant was fined $100.
The issues for review are whether section 192-8 is a proper exercise of police powers, whether it denies persons the equal protection of the laws, and whether the ordinance is unconstitutionally overbroad and vague.
On February 17, 1974, at about 11:45 a.m. police officers Davilo and LoBue noticed the defendants, who were wearing female clothing and makeup, sitting next to a window in a restaurant. The officers waited about five minutes for the defendants to come out and approached them as they walked along Randolph Street in the City of Chicago. Officer LoBue testified he believed both were females, but while on duty on February 15, 1974, Officer Davilo had seen Kim Kimberley in a bar and knew him to be a male.
Officer Davilo testified Wallace Wilson was wearing a black, knee-length dress, a fur coat, nylons and dark shoes. Kim Kimberley was wearing a maroon pants suit of the bell bottom type, and both were heavily made up. Officer Davilo asked the defendants whether they were females, and Kim Kimberley stated, "Well, you could say we are, but we are really not." Officer Davilo asked what he meant by that and Kimberley answered, "Yes, we are both males, men."
The defendants were arrested, advised of their rights, and taken to the police station where pictures were taken with their clothes partially on and their genitals and chests exposed. Both were wearing bras and garter belts; both had male genitals, and Wilson had small breasts.
Wallace Wilson testified he was wearing black Palazo pants, which are huge bell bottomed pants, a black top, and coat. He wore a long, black wig and carried a handbag. He stated he was a transsexual, a person who has the mind of a female and the body of a male. He was undergoing psychiatric treatment and would then have a sex change operation. He considered himself to be a female.
Kim Kimberley testified he was wearing black slacks, a black top, a navy blue coat, a shoulder-length wig, and carried a shoulder bag when he was arrested. Upon being questioned by the arresting officers he told them he was a transsexual who was undergoing a sex change, and he had to wear female clothes for at least a year and a half.
He had talked to Officer Davilo two days before the arrest and knew he was a police officer. At that time he was wearing a two piece dress, a skirt, and a top. He did not deny he was biologically male or hold himself out as a biological female. He stated he had been a transsexual all his life and was currently undergoing treatment in preparation for a sex change. He considered himself to be a male, but he thinks as a woman.
The ordinance complained of, section 192-8 of the Municipal Code of Chicago, is found in the chapter entitled "Public Morals," and it provides as follows:
"Any person who shall appear in a public place in a state of nudity, or in a dress not belonging to his or her sex, with intent to conceal his or her sex, or in an indecent or lewd dress, or who shall make any indecent exposure of his or her person, shall be fined not less than $20.00 nor more than $500.00 for each offense."
The defendants first contend the ordinance is an improper exercise of police power because it violates fundamental personal liberties without satisfying any proper governmental purpose.
• 1, 2 The State (and the governmental entities which derive their powers from it) may enact and enforce legislation designed to preserve and promote the welfare, health, safety, and morals of the public pursuant to its police powers (California v. La Rue (1972), 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390; Mugler v. Kansas (1887), 123 U.S. 623, 31 L.Ed. 205; The License Cases (1847), 46 U.S. 504, 12 L.Ed. 256), and the court may interfere with legislation enacted pursuant to the police powers only to the extent the Constitution so requires. (Poe v. Ullman (1961), 367 U.S. 497, 6 L.Ed.2d 989, 81 S.Ct. 1752.) The due process clause of the Fourteenth Amendment establishes a sphere of personal liberty for every individual subject to reasonable intrusion by the State in furtherance of legitimate State interests (Schmerber v. California (1966), 384 U.S. 757, 16 L.Ed.2d, 86 S.Ct. 1826), and requires that the challenged law rationally relate to some aspect of the public welfare: the law must achieve its objective, and the objective must be within the scope of the public welfare.
When the legislation is designed to promote the public morality, as in the instant case, the problem of applying the standards of due process is made more difficult because the principles are not subject to objective evaluation. In this situation the moral practices regulated by the statute must be objectively related to the public welfare, or the regulation must conform to the predominant view of morality in the community.
In Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705, the court indicated that where certain "fundamental rights" are involved, the regulation limiting those rights may be justified only by a "compelling state interest," and legislative enactments must be narrowly drawn to express only the legitimate State interests at stake. Nevertheless, in Roe and in Doe v. Bolton (1973), 410 U.S. 179, 35 L.Ed.2d 201, 93 ...