In any year but 2020, Halloween is an exciting opportunity to don a mask. Unfortunately, COVID-19 has made masking a serious public health responsibility and a partisan flashpoint, rather than a fun costume prop. This year, as images of masked marchers for racial justice are juxtaposed with violent protests against pandemic-related mask mandates, the question of the law’s ability to define and enforce—or forbid—masking seems more urgent than ever before. However, in New York State, masks have been entwined with politics, identity, and power for 175 years. Until just a few months ago, a mid-19th century anti-masking law meant to curb political protest served as a tool to police boundaries of gender, class, and race.
New York passed a statewide anti-mask law in response to the 1839 Anti-Rent Movement, which began in the Hudson Valley. Impoverished by a widespread economic downturn, tenant farmers disguised themselves as “calico Indians” to burn eviction notices and drive off rent collectors—several of whom they tarred and feathered. In retaliation, sheriffs and soldiers ransacked homes in search of calico “Indian dresses,” prompting one woman to write indignantly that “even the paraphernalia of female apparel has been rudely rummaged over.” In 1845, Governor Silas Wright (a conservative Democrat who sided with the landowners) signed a law forbidding masks that was squarely aimed at suppressing the “calico Indians.” Anti-Rent voters defeated Wright in the election of 1846, but his anti-mask law endured.
The language of the law forbade the use of masks, with an exception for entertainment purposes:
“Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loitering, remaining or congregating in a public place with other persons so masked or disguised, or knowingly permitting or aiding persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities.”New York Penal Law §240.35(4)
But who gets to decide what is considered entertainment? Who has the resources to obtain and secure permission from the authorities?
In 1883, Alva and William K. Vanderbilt spent $250,000 (about $6 million dollars today) hosting an ultra-luxurious masquerade for 1,200 in the enormous ballroom of the Vanderbilts’ 5th Avenue mansion, which is still cited by historians as one of New York’s premier displays of wealth and privilege. Police were deployed to protect the arriving guests, many in masks, from crowds of gawkers.
In contrast to the deference shown to the Vanderbilt’s guests, police interpreted the broad language of the anti-masking law as a license to surveil, harass, and arrest New Yorkers wearing “unusual or unnatural attire.” Thus, cross-dressers, drag queens, butches, androgynes, and “transvestites” who challenged powerful norms of class and gender often did so at significant risk. Nevertheless, in the late 19th and early 20th centuries, “fairies,” “pansies,” and “bulldaggers” became a visible part of LGBT communities in neighborhoods such as Greenwich Village, Times Square, the Bowery, and the Brooklyn waterfront. Harlem, in particular, was relatively hospitable to people “in the life,” offering several venues where they could socialize and perform. Club Hot-Cha, the Ubangi Club, and the Lafayette Theater became famous in the 1920s and early 1930s for hosting female and male “impersonators.”
Another popular venue was the Hamilton Lodge Ball—officially the Masquerade and Civic Ball, hosted annually since 1869 by Lodge #710 of the Grand United Order of Odd Fellows. By the mid-1920s, it had become widely known as the “Fairies Ball,” and drew hundreds of dancers in artistic and original costumes from all over the country to Harlem to compete for cash prizes. At the peak of the Ball’s fame, thousands of paying spectators came to watch. (Hamilton Lodge was a Black social organization; the Ball was open to Black and white participants.) Police officers regularly circulated through the crowd and often made arrests among the revelers.
In 1931, a citywide crackdown banned “rouged and beskirted male entertainers” and men-only dance halls. Shortly afterwards, the repeal of Prohibition led New York to create the State Liquor Authority (SLA), empowered to grant or revoke liquor licenses according to broadly defined standards of patron behavior. As historian George Chauncey points out, for years the SLA considered the mere presence of gay and lesbian patrons as “disorderly,” forcing legitimate businesses to reject them or risk losing their licenses. This practice especially marginalized people whose gender expression did not align with their assigned sex—by the 1960s, the only places they could reliably gather were unlicensed and Mafia-run, like the Stonewall Inn. As gay activist Dick Leitsch recalled, “The ‘drags’ and the ‘queens,’ two groups which would find a chilly reception or a barred door at most of the other gay bars and clubs, formed the ‘regulars’ at the Stonewall. To a large extent, the club was for them.”
Such establishments were subject to frequent raids by the police. When patrons began fighting back against such a routine raid in the small hours of June 28, 1969, NYPD Deputy Inspector Seymour Pine remembered that “transvestites” initiated the resistance: “We had a couple of the transvestites who gave us a lot of flak… they were very noisy that night, acting up: ‘Get your hands off me!’ ‘Don’t touch me!'” (Besides the employees of the bar, “transvestites” were the only ones facing arrest.) Witness accounts vary, but several assert that a “bull dyke” in male attire catalyzed the wider rebellion, with her battle against the arresting officers inspiring others in the crowd to start throwing bottles and cobblestones. While ultimately the multi-day Stonewall Uprising engrossed a highly diverse crowd of participants, many of those present recalled seeing “street queens” of color among the fighting vanguard.
Although “transvestites” were a crucial part of the Stonewall Uprising and the gay liberation movement, many of the institutions that proliferated after 1969 were not necessarily receptive to their issues and concerns. In response, Lee Brewster founded Queens Liberation Front (QLF) in 1969 to fight “for the right to dress as we see fit.” QLF failed to repeal the 1845 anti-masking law, but Brewster’s attorneys did overturn a rule stating that “men dressed in the female attire” could not attend dances licensed by the city, and forced the Bureau of Consumer Affairs to remove a clause prohibiting “homosexuals, Lesbians, or persons pretending to be” from entering an establishment with a catering or cabaret license.
In 1970, Sylvia Rivera and Marsha P. Johnson founded Street Transvestite Action Revolutionaries (STAR). Alongside their core mission to shelter, support, and advocate for young “street queens,” STAR called for “the right to free dress and adornment” and “the end to all job discrimination against transvestites of both sexes and gay street people because of attire.” Below, Rivera and Johnson are pictured rallying in support of a “gay rights” bill prohibiting discrimination in housing, employment, and public accomodations on the basis of sexual orientation. Introduced in 1970, the bill finally passed in 1986 — but it did not address biases against trans New Yorkers. The city did not ban discrimination based on gender identity and expression until 2002, and it took until 2019 for New York to enact similar protections statewide with the passage of the Gender Expression Non-Discrimination Act (GENDA).
Incredibly, New York’s anti-masking law remained on the books until May 28, 2020, well after the start of the COVID-19 pandemic. Initially public health officials had discouraged mask-wearing in order to preserve scarce supplies of protective equipment—particularly the N95 masks required by hospitals and first responders. However, guidance changed in Spring 2020, as the need to prevent asymptomatic people from spreading the virus became urgent. In April, New York Governor Andrew Cuomo issued an Executive Order mandating face coverings, which directly conflicted with the 1845 law.
After the release of several viral videos showing law enforcement targeting masked Black men, New York Assemblymember Dan Quart stated,
“This is a disaster waiting to happen. Not only is the criminalization of face coverings confusing for all New Yorkers, it exposes men of color to police harassment. If we are to stop the spread of COVID-19, we must ensure that everyone feels safe wearing a mask in public, without the threat of arrest, prosecution, or worse.”
George Floyd’s death in police custody on May 25, 2020, served as the final spur to repeal the anti-masking law three days later. Although thousands of New Yorkers took to the streets in the wake of Mr. Floyd’s killing, high rates of mask compliance helped ensure that transmission of COVID-19 remained low. The repeal of the law was a step towards ensuring that communities of color and LGBTQ protestors remain as safe as possible—both from the coronavirus and disproportionate police action.
Written by Jeanne Gutierrez, Curatorial Scholar, Center for Women’s History