Does it violate equal protection for the prosecution to use crossdressing as evidence of intent to commit prostitution?

Question

In Short v. City of Birmingham

At trial, evidence presented by the City showed that, on May 10, 1980, at approximately 2:15 A.M., two Birmingham police officers assigned to Vice Detail saw the defendant dressed in female clothing in the vicinity of 5th Avenue North and 18th Street in the downtown area of Birmingham.

If a female wore female clothing, this could not be used as evidence of intent to solicit prostitution. Therefore, the birth sex of Short is an essential qualification in the state's argument.

1. Does using this argument in court violate the equal protection clause?
2. If not in 1980, would it violate our modern interpretation of the equal protection clause? I am unsure if the reasoning Gorsuch applied to the Civil Rights act in Bostock is valid precedent when interpreting the Fourteenth Amendment.

Answer 1

Does it violate equal protection for the prosecution to use crossdressing as evidence of intent to commit prostitution?

No. Crossdressing was not the (or a) reason why the police officers arrested the defendant. Instead, it aided in "giv[ing] a person of ordinary intelligence fair notice of what [prohibited] conduct" (brackets added) was taking place in the context of the defendant's pattern of conduct, his decision to act "in an area known to be an area frequented by prostitutes", and the other man's driving away when the officers approached the vehicle.

Establishing a violation of the equal protection clause would require proof of police officers' leniency on non-crossdressers who engaged in conduct similar to the defendant's.

would it violate our modern interpretation of the equal protection clause?

No. In terms of Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), cross-dressing was not a motivating factor. As portrayed in Short, the police officers' mind was not "let's arrest him because he is a cross-dresser [and also because xyz]", but "let's arrest him because his conduct suggest he intends to engage in the unlawful act of prostitution".

Answer 2

It seems Short wore clothing that in 1980 was deemed totally inappropriate. The fact that he was male was exactly what made it inappropriate. A woman wearing the exact same clothes would have done nothing inappropriate. (Obviously views have changed over forty years).

It’s the same today. A man can wear a skirt and nothing else which is a bit unusual, and wouldn’t be my style, but no problem (dress code at work might be a problem). A woman wearing a skirt and nothing else would be dressed inappropriately.

So while today Short wouldn’t be reasonably accused of prostitution, there are things where men and women are different.