In recognition of the nuances of gender identity, some suburbs remove decades-old laws that banned clothing deemed improper

James Naughton, a lawyer and Elk Grove Village resident, was poring over the village’s municipal code while working with Kaylyn Han, a then-Elk Grove High School student, on a project regarding police reform when he stumbled upon something troubling: Under the village’s indecent exposure law, it was illegal for someone to dress in clothes in public that were traditionally designed for the opposite sex.

He notified the mayor of Elk Grove Village, Craig Johnson, that such a law existed. Johnson said the village would change it as it was already conducting a review to make sure its laws were up to date. But the review took a back seat to the pandemic once it hit, so the law was never changed.

The law is inoperative, but removing it would show the towns recognize the nuances of gender identity, Naughton said.

The fact that June is LGBTQ pride month reminded Han about the law, so she asked Naughton if the law was ever changed. He checked and saw it hadn’t, so he followed up with Johnson. Elk Grove removed the part of the law Naughton objected to shortly thereafter.

“We had no problem taking care of (the law) and fixing it,” Johnson said. “It’s not right to have it, and that’s why when we were made aware of it, we took care of it. ... Stuff that was accepted 100 years ago, 150 years ago ... . it does not belong anywhere on our codes.”

Naughton also found similar laws in Schaumburg and Des Plaines. He notified both towns in June, and they have since taken them off their books.

In Schaumburg, the law, adopted in 1960, previously stated that “It shall be unlawful for any person to appear in a public place in a state of nudity, or in a dress not belonging to his sex or in an indecent or lewd dress or to make any indecent exposure of his person.”

The village board approved changing the law at a July meeting, according to village of Schaumburg Director of Communications and Outreach Allison Albrecht. It now says, “It shall be unlawful for any person to appear in a public place in a state of nudity or in an indecent or lewd dress or to make any indecent exposure of his person.”

Des Plaines unanimously got rid of the law at a city council meeting Monday.

“We’re a pretty welcoming town and we want everyone to feel like they’re accepted here, and we’ve made great strides in that direction,” Des Plaines Mayor Andrew Goczkowski said. “This is just another one of those.”

There is no evidence to suggest that anyone was ever cited under the law, and the towns were not aware that such a law existed before Naughton brought it to their attention, they said.

“Yeah, maybe it hasn’t been enforced, but it could be, which is what’s troublesome to me,” Naughton said.

Greg Storms, manager of foundation and government relations for the Center on Halsted, an LGBTQ-focused community center in Chicago, applauded the towns that took action.

“These sorts of laws have been historically widespread and were used to target LGBTQ — and especially transgender — individuals,” Storms said. “Even today, many of our LGBTQ elders live with the trauma of police-motivated violence brought upon by laws like these. Today, we have a more nuanced understanding of gender, and our society is gradually becoming more inclusive of transgender, gender-nonconforming and nonbinary folks.”

Storms said throughout the U.S. there has been “a rampant influx of anti-transgender legislation efforts. ... That is why actions like those of (the suburbs) are so important.”

The three suburban towns are conducting a more thorough review of their codes to make sure there are no other antiquated laws, they said.

“We have a law on the books that says you cannot curse on public streets and alleyways in Elk Grove,” Johnson said. “Well, first off, Elk Grove has no alleyways. ... Secondly, I’m in a lot of trouble because I can guarantee you in the 61 years I’ve lived here, I’ve cursed on the street a few times.”

When Elk Grove was incorporated in 1956, the village put Chicago laws on its books without considering whether they applied, Johnson said.

“That’s why you get some of these outdated, antiquated laws. No one really read that deeply into it, unfortunately,” Johnson said. “It’s been on our books for, what, almost my whole life, you know, 60 years, no one even knew it was there. That tells you two things. One, obviously it was never enforced, and two ... it’s just something they transferred (from Chicago).”

It is doubtful that the law would have held up in court if someone violated it, Naughton said.

The Ohio Supreme Court heard City of Columbus v. Rogers in 1975, in which a man challenged the constitutionality of a similar law, according to a copy of the ruling. The court found the law unconstitutional under the due process clause of the 14th Amendment, reasoning that “the defect is that the terms of the ordinance, ‘dress not belonging to his or her sex,’ when considered in the light of contemporary dress habits, make it ‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”

“I understand that this isn’t like Obergefell (v. Hodges), it’s not legalizing gay marriage, but at the same time it’s a small step in sending a message that we’re more inclusive as a community,” Naughton said. “I’d love to see people’s sexuality or their gender identity become more normative, and that this isn’t something we even have to talk about, in terms of the laws, in terms of people celebrating their identity.”

Others in the community questioned the necessity of taking the law off the books, Naughton said, saying the village would be better off spending time on more pressing matters since the law has never been, and will never be, enforced. But to Naughton, removing the law says something about what the village stands for.

“The laws that are on the books are representative of the values that the community holds,” Naughton said.