Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. David J. Shields, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County, the defendants, Wallace Wilson and Kim Kimberley, were convicted of having violated section 192-8 of the Municipal Code of the city of Chicago (Code), 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 appellate court affirmed (44 Ill. App.3d 620), and this court granted leave to appeal.
Defendants were arrested on February 18, 1974, minutes after they emerged from a restaurant where they had had breakfast. Defendant Wilson was wearing a black, knee-length dress, a fur coat, nylon stockings and a black wig. Defendant Kimberley had a bouffant hair style and was wearing a pants suit, high-heeled shoes and cosmetic makeup. Defendants were taken to the police station and were required to pose for pictures in various stages of undress. Both defendants were wearing brassieres and garter belts; both had male genitals.
Prior to trial, defendants moved to dismiss the complaint on the grounds that section 192-8 was unconstitutional in that it denied them equal protection of the law and infringed upon their freedom of expression and privacy. This motion was denied.
At trial, the defendants testified that they were transsexuals, and were, at the time of their arrests, undergoing psychiatric therapy in preparation for a sex reassignment operation. As part of this therapy, both defendants stated, they were required to wear female clothing and to adopt a female life-style. Kimberley stated that he had explained this to the police at the time of his arrest. Both defendants said they had been transsexuals all of their lives and thought of themselves as females. The question of arrest is not an issue.
Section 192-8 of the Code provides:
"Any person who shall appear in a public place * * * in a dress not belonging to his or her sex, with intent to conceal his or her sex, * * * shall be fined not less than twenty dollars nor more than five hundred dollars for each offense."
Defendants contend that section 192-8 is unconstitutionally vague, overly broad, and denies them equal protection under the law on account of sex. They argue that the section is overly broad, both on its face and as applied to them, in that it denies them freedom of expression protected by the first amendment and personal liberties protected by the ninth and fourteenth amendments of the United States Constitution.
The city asserts that section 192-8 is neither vague nor overly broad and that the section does not deny defendants equal protection under the law.
We find that the above-cited section, as applied to defendants here, is unconstitutional, and in so doing we do not, therefore, reach the issues of vagueness and equal protection.
The existence of unspecified constitutionally protected freedoms cannot be doubted. E.g., Roe v. Wade (1973), 410 U.S. 113, 152-54, 35 L.Ed.2d 147, 176-78, 93 S.Ct. 705, 726-27; Griswold v. Connecticut (1965), 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678.
In Kelley v. Johnson (1976), 425 U.S. 238, 47 L.Ed.2d 708, 96 S.Ct. 1440, the Supreme Court was confronted with the question of whether one's choice of appearance was constitutionally protected from governmental infringement. At issue was an order promulgated by petitioner, the commissioner of police for Suffolk County, New York, which order established hair-grooming standards for male members of the police force. The court acknowledged that the due process clause of the fourteenth amendment "affords not only a procedural guarantee against deprivation of `liberty,' but likewise protects substantive aspects of liberty against unconstitutional restrictions by the State." (425 U.S. 238, 244, 47 L.Ed.2d 708, 713, 96 S.Ct. 1440, 1444.) The court observed, however, that its prior cases offered little, if any, guidance on whether the citizenry at large has some sort of liberty interest in matters of personal appearance. It assumed for purposes of its opinion that such did exist.
In determining the scope of that interest and the justification that would warrant its infringement, the court distinguished claims asserted by individuals of a uniformed police department from claims by the citizenry at large, noting that the distinction was "highly significant." (425 U.S. 238, 245, 47 L.Ed.2d 708, 714, 96 S.Ct. 1440, 1444.) The court held that, in the context of the case before it, the burden rested with the respondent police officer to demonstrate that there was no rational connection between the regulation and the police department's legitimate function of promoting safety of persons and property. After analyzing the need for uniformity and discipline within the ranks of the police department, the court concluded that the challenged order was rationally related to two legitimate objectives: first, "to make police officers readily recognizable to the members of the public," and second, to foster the "espirit de corps which such similarity is felt to inculcate within the police force itself." (425 U.S. 238, 248, 7 L.Ed.2d 708, 716, 96 S.Ct. 1440, 1446.) Mr. Justice Powell, who specially ...