*Ashli Glatfelter
I. Introduction
As far as the queer community has come in nearly fifty-four years,[2] is it possible lawmakers will ban a staple of queer culture?[3] In recent years, more conservative states have introduced a torrent of bills targeting the LGBTQIA+ (LGBT) community and gender expression from multiple angles.[4] Beginning in 2022, some states introduced legislation restricting drag entertainment and performances[5] and placing aggressive limitations on the rights of transgender people.[6] One such bill, coined the “anti-drag bill,”[7] passed in Tennessee as recently as March 2023, and it has the LGBT community preaching: “Not today, Satan, not today!”[8]
Legislative discrimination against the LGBT community is nothing new.[9] In 1863, the first law against non-binary gender expression “prohibited someone from being out in public if they were wearing clothing that was different from their [legal] or assigned sex.”[10] Though laws sharing that bigoted sentiment have since been repealed,[11] the haunting new wave of anti-drag legislation, including the Tennessee law, leaves many questions about the extent of their enforcement and the potential for First Amendment challenges.[12]
II. Tennessee’s Anti-Drag Bill
The new Tennessee law effectively criminalizes drag by prescribing that “cabaret performers” shall “face misdemeanor charges in the first instance, punishable by a fine up to $2,500 and/or up to a year in jail”[13] for performing “on public property” or “in a location where [their performance] could be viewed by” minors.[14] Further, any “subsequent violations face a felony charge, punishable by up to six years in jail.”[15] Conservative legislatures have left the definition of “cabaret performers” intentionally broad, but these bills’ proponents[16] propose a certain definition that places drag performers squarely in the category of those who can be charged.
Generally, drag is the hyper-presentation of gender expression for entertainment purposes.[17] Many drag performers have drag personas that express the opposite of their assigned sex and gender identity, while other drag performers hyperbolically express their own gender identity.[18] Proponents of these anti-drag bills acknowledge this basic principle that drag performers exhibit different gender expressions because they included “male or female impersonators” within the definition of “cabaret performers.”[19] Conservative legislators contend that there is no entertainment value in drag performances. Rather, they assert that drag shows, by their gender-expressive nature, pose dangers to children.[20]
To curb the supposed dangers, the bills limit drag shows and performances in a number of ways.[21] They restrict where shows can be held and require the shows and potentially hosting businesses—like restaurants, bars, and nightclubs—to be “recategorized as sexually oriented enterprises,” requiring them to obtain specific permits, pay fees to remain open, and even lose state funding.[22] It remains untold just how far the restrictions on drag shows will reach. Will it prohibit drag performers from participating in cities’ Pride events?[23] Will it restrict schools or public libraries from hosting drag story times?[24] Will all bars have to black out their windows and stand guard at all doors to ensure no child can see in?[25]
The breadth of the proposed laws makes it conceivable that even non-drag performances by “male or female impersonators” could be subject to misdemeanor or felony charges.[26] When the definition of drag is limited to an expression of gender, while forgetting the “campy”[27] aesthetic, it brings traditional stage performances within reach of prosecution.[28] Such “broadness leaves theater shows or even female comedians dressed in pants at risk of violating these laws.”[29] Who is to say that young boys and girls who play the opposite gender to fulfill roles in school productions are not subject to criminal prosecution?[30]
As with any new law, there is a question of how the law will be enforced. In the near future, law enforcement could charge drag performers under the Tennessee law for dressing in drag on public streets or performing in places accessible to children—such as restaurants and libraries.[31] Unfortunately, for certain drag queens and kings, they may soon need to travel with more than their wigs, makeup, and outfits—an understanding of their legal rights may be more invaluable than new pumps or fresh tights.
III. Challenging Tennessee’s Anti-Drag Law
What follows is a brief analysis of the Tennessee law’s constitutionality concerning drag performers’ First Amendment freedoms of free speech and expressive conduct.[32] Individuals’ speech and expressive conduct cannot be restricted simply because the government or its agents do not like the messages therefrom or find them offensive.[33] While “[i]t has not yet been determined by a court that performances by female or male impersonators are expressive conduct protected under the First Amendment, [] scholars say they most likely are” because drag performances “consist of music, dance and theater, all of which have long been considered expression” protected by the First Amendment.[34]
In light of drag performers’ expressive conduct arguments, proponents of the Tennessee law would likely argue that drag performances are inherently obscene and, thus, not subject to First Amendment protection.[35] In 1973, the Supreme Court articulated that speech and expression are obscene and lawfully subject to government restrictions when three conditions are met: 1) an average person, applying community standards, finds that the work as a whole appeals to the prurient interest, 2) that the work shows, in a patently offensive way, sexual conduct specifically defined by the law, and 3) that the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[36]
A. Community Standards and the Prurient Interest
First, when considering whether a drag performance as a whole “appeals to the prurient interest,” one must consider only local and state-wide, perceptions rather than national community standards.[37] One must then consider the average person in Tennessee. Is it those who frequent the cities of Nashville, Memphis, Knoxville, and Chattanooga? Or is it those who inhabit the state’s rural areas? A court’s determination of the average person sheds great light on the scope of the prurient interest.[38]
The Supreme Court has “defined material appealing to prurient interest as material having a tendency to excite lustful thoughts, and defined prurient interest as a shameful or morbid interest in nudity, sex, or excretion.”[39] Whether drag performances arouse any sexual thoughts is part of a larger debate.[40] Drag as an art form is varied, as it can be an exhibition of camp, fashion, pageantry, or even comedy.[41] Drag queens and kings who read books to children at local libraries surely present themselves differently than drag performers who perform exclusively at night clubs limited to viewers who are of age to drink alcohol.[42] Drag performers adjust the tone of their personas and shows to their intended audiences and venues, so to categorize all drag as prurient is a faulty argument that ignores the diversity within drag entertainment.[43]
B. Patently Offensive Specific Sexual Conduct
Section 1407 of the Tennessee law makes no attempt to specifically define the “sexual conduct” being criminalized.[44] Section 1401 gives more guidance, but its definition of “adult cabaret” lacks any mention of or relation to “sexual conduct.”[45] Within that same section, though, “entertainers” include those who perform “specified sexual activities,” described as the exhibition of stimulated genitals, masturbation or intercourse, and fondling of private parts.[46] Even if a more erotic drag performance falls into the last of the aforementioned exhibitions of “sexual activities,” whether any part of such performance is “patently,” or without a doubt, “offensive”[47] begs a look into the conservative sexualization and “ownership of feminine presenting people’s bodies.”[48]
C. The Value of Drag
Perhaps the best argument in opposition to the anti-drag bills is that drag performances do not lack serious artistic or political value. From an artistic perspective, drag has kept millions of people looking,[49] watching,[50] and wanting more. RuPaul’s Drag Race, a drag competition show on cable television for a cumulative 22 seasons, has made a positive name for the art of drag, winning numerous Hollywood Critics Association TV,[51] People’s Choice,[52] Realscreen,[53] and Primetime Emmy Awards.[54] Even conservatives who support the Tennessee law are known to indulge in the art of drag.[55] Moreover, from a political lens, drag is embedded in LGBT culture, a culture embraced by a deeply democratic community.[56] And from an economic standpoint, many bars and restaurants cannot deny the popularity and resulting profits made from hosting routine weekend drag brunches.[57]
D. Unconstitutionally Overbroad
Just as the above arguments beg the conclusion that drag is not obscene and cannot be regulated as Tennessee’s legislature has proposed, a procedural First Amendment argument also favors drag queens and kings.[58] The Tennessee law, and those like it, restrict all drag performances because some are unsuitable for minors’ eyes.[59] However, “adults cannot be restricted to only that expression that’s suitable for children, and that’s what could happen under a law that ban[s] adult entertainment on public property or where minors may be present . . . . A law that bans both protected and unprotected expression is considered overbroad and unconstitutional.”[60]
So far, there has been one successful attempt to stop the implementation of the Tennessee law.[61] At the end of March 2023, a federal district court judge issued the decision in Friends of George’s, Inc. v. Tennessee.[62] The judge ruled that the Tennessee law is an unconstitutional content-based restriction on free speech that is problematic and overly broad.[63] This ruling prohibited implementation of the law for fourteen days pending continued litigation,[64] the results of which will undoubtedly become part of future drag-ban discourse.
IV. Conclusion
The incidental effects of the emerging anti-drag legislation are not too distant.[65] Whether law enforcement officers will remove drag queens from upcoming Pride parade routes or stop brunch performances to charge drag kings because a child could see through an establishment’s windows, “allowing the government to exercise a really powerful degree of authority in determining what you’re allowed to wear, where you’re allowed to be in public, and frankly, how you’re allowed to exist when you’re walking down the street” or in the potential presence of children is an incredibly devastating thing to imagine.[66]
*Ashli Glatfelter is a third-year evening student at the University of Baltimore School of Law. She currently serves as a Production Editor for Volume 52 of Law Review. Ashli is a member of the Royal Graham Shannonhouse III Honor Society and OUTLaw, the law school’s LGBTQ+ group. She received her bachelor’s degree in Legal Studies from Stevenson University, along with minors in English and Management & Organizational Leadership. Ashli also works as a full-time paralegal at Alperstein & Diener, P.A., a firm in downtown Baltimore City practicing criminal defense, personal injury, and Maryland workers’ compensation law. Ashli encourages readers who feel called to support the ACLU’s Drag Defense Fund to do so by visiting https://action.aclu.org/give/support-drag-defense-fund.
[1] Manuela López Restrepo, The Anti-Drag Bills Sweeping the U.S. Are Straight from History’s Playbook, NPR (Mar. 6, 2023, 5:44 PM), https://www.npr.org/2023/03/06/1161452175/anti-drag-show-bill-tennessee-trans-rights-minor-care-anti-lgbtq-laws.
[2] 1969: The Stonewall Uprising, Library of Congress, https://guides.loc.gov/lgbtq-studies/stonewall-era (last visited Apr. 10, 2023).
[3] See Restrepo, supra note 1.
[4] See Nicole Narea & Fabiola Cineas, The GOP’s Coordinated National Campaign Against Trans Rights, Explained, VOX (Mar. 10, 2023, 11:05 AM), https://www.vox.com/politics/23631262/trans-bills-republican-state-legislatures; see also Jaclyn Diaz, At Least 9 GOP-Led State Legislatures Want to Restrict or Criminalize Drag Shows, NPR (Feb. 8, 2023, 7:06 AM), https://www.npr.org/2023/02/08/1151731736/at-least-10-state-legislatures-trying-restrict-criminalize-drag-shows (“Last year, 315 anti-LGBTQ bills were filed during state legislative sessions. However, only 29 became law . . .”); Dustin Jones & Jonathan Franklin, Not Just Florida. More Than A Dozen States Propose So-Called ‘Don’t Say Gay’ Bills, NPR (Apr. 10, 2023, 7:01 AM), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills (discussing bans on library books and sexual-education courses, which Florida has now banned from grades K-12).
[5] See Restrepo, supra note 1; Diaz, supra note 4; see also Tess Duvall, Kentucky State Passes GOP-Backed Anti-Drag Show Bill After Heated Debate, Lexington Herald Leader (Mar. 10, 2023, 4:46 PM ), https://www.kentucky.com/news/politics-government/article272977005.htm.
[6] See Jones & Franklin, supra note 4.
[7] See Restrepo, supra note 1.
[8] Brittany Brown, 10+ Unforgettable, Hilarious and Iconic “RuPaul’s Drag Race” Quotes!, Reel Rundown (Jan. 19, 2022, 7:19 PM), https://reelrundown.com/tv/RuPauls-Drag-Race-Quotes (quoting winner of RuPaul’s Drag Race season 6); see also Diaz, supra note 4 (qualifying the anti-drag bills as part of the “thinly veiled attacks against the LGBTQ community as a whole”).
[9] Restrepo, supra note 1; Restrictions on Drag Shows Have a History in the U.S., NPR (Mar. 6, 2023, 5:02 PM), https://www.npr.org/transcripts/1161452206 (transcript of a podcast featuring Jules Gill-Peterson).
[10] Restrictions on Drag Shows, supra note 9.
[11] Id.
[12] See infra pp. 3–5.
[13] See Restrepo, supra note 1.
[14] S.B. 3, 113th Gen. Assemb., Reg. Sess. (Tenn. 2023), https://www.capitol.tn.gov/Bills/113/Bill/SB0003.pdf.
[15] See Restrepo, supra note 1.
[16] Partisan Composition of State Legislature, BallotPedia, https://ballotpedia.org/Partisan_composition_of_state_legislatures (last visited Apr. 10, 2023).
[17] See generally Understanding Drag, Nat’l Ctr. for Transgender Equal. (Apr. 8, 2017), https://transequality.org/issues/resources/understanding-drag.
[18] See Jey Nolfi, RuPaul’s Drag Race Reunites 7 Trans Queens for LGBTQ History Month Photo: ‘We’re All Trailblazing!’, Ent. Wkly. (Oct. 11, 2022, 1:00 AM), https://ew.com/tv/rupauls-drag-race-trans-queens-reunion-lgbtq-history-month-portrait/.
[19] S.B. 3, 113th Gen. Assemb., Reg. Sess. (Tenn. 2023), https://www.capitol.tn.gov/Bills/113/Bill/SB0003.pdf.
[20] See Diaz, supra note 4 (referencing conservative views that drag is sexually suggestive, constitutes indecent exposure, is a slippery slope to legalizing pedophilia, and that performers “groom” children).
[21] Id.
[22] Id.
[23] See Restrepo, supra note 1.
[24] See Rori Porter, The Conservative Sexualization of Drag, Medium (June 15, 2022), https://aninjusticemag.com/the-conservative-sexualization-of-drag-55e7d510d535.
[25] See Restrepo, supra note 1.
[26] See Restrictions on Drag Shows, supra note 9.
[27] Campy, Drag Race Wiki, https://rupaulsdragrace.fandom.com/wiki/RuPaul%27s_Drag_Race_Dictionary#:~:text=Campy,%26%20over%2Dthe%2Dtop. (last visited Apr. 10, 2023).
[28] See Restrepo, supra note 1.
[29] Id.; see also Elizabeth Blair, How Bills Restricting Drag Could Impact High School Theatre Productions, NPR (Mar. 3, 2023, 5:34 PM), https://www.npr.org/2023/03/03/1161051121/how-bills-restricting-drag-could-impact-high-school-theatre-productions.
[30] Id.
[31] See generally Restrepo, supra note 1.
[32] See Kathleen Carlson, Drag Show Laws, First Amend. Encyc. (Feb. 2023), https://www.mtsu.edu/first-amendment/article/2185/drag-show-laws.
[33] Id.
[34] Id.
[35] Id.
[36] Miller v. California, 413 U.S. 15, 39 (1973); see generally Amdt 1.7.5.11 Obscenity, Const. Annotated, https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812/#ALDF_00029722 (last visited Apr. 10, 2023).
[37] See generally id.
[38] Id.
[39] Roth v. United States. 354 U.S. 476, 487 n.20 (1957).
[40] See Porter, supra note 24.
[41] See generally id.
[42] Id.
[43] Id.
[44] Tenn. Code Ann. § 7-51-1407 (West 2023).
[45] Id. § 7-51-1401 (West).
[46] Id.
[47] Miller v. California, 413 U.S. 15, 39 (1973).
[48] See Porter, supra note 24; see also Jon Stewart to Conservative State Senator: ‘You Don’t Give a Flying F**k’, CNN Bus., https://www.cnn.com/videos/business/2023/03/03/jon-stewart-oklahoma-nathan-dahm-anti-drag-laws-gun-control-orig.cnn-business (noting the Senator’s contradicting drag-restriction logic when applied to gun control).
[49] See, e.g., Trixie Mattel (@trixiemattel), Instagram, https://www.instagram.com/trixiemattel/ (last visited Apr. 10, 2023) (3.2 million followers); Sasha Colby (@sashacolby), Instagram, https://www.instagram.com/sashacolby/ (last visited Apr. 20, 2023) (461 thousand followers); Jinkx Monsoon (they/she) (@thejinkx), Instagram, https://www.instagram.com/thejinkx/ (last visited Apr. 10, 2023) (1.6 million followers and on Broadway as Matron “Mama” Morton in Chicago).
[50] See RuPaul’s Drag Race, (World of Wonder Feb. 2, 2009 – Mar. 7, 2016 (season 1–8), WOW Presents Plus Mar. 24, 2017 – Jan. 7, 2022 (season 9–14), MTV Jan. 6, 2023 – Apr. 14, 2023 (season 15)).
[51] See e.g., Beatrice Verhoeven, ‘This Is Us,’ ‘Succession,’ ‘Severance’ Lead 2022 HCA TV Nominations, The Hollywood Rep. (July 7, 2022, 8:20 AM), https://www.hollywoodreporter.com/tv/tv-news/2022-hollywood-critics-association-broadcast-cable-tv-nominations-1235176458/.
[52] See The Competition Contestant of 2022, E! People’s Choice Awards, https://www.eonline.com/shows/peoples_choice_awards [https://web.archive.org/web/20201101020835/https://pca.eonline.com/tv/the-competition-contestant-of-2020] (last visited Apr. 20, 2023).
[53] See 2012 Winners, Realscreen Awards, https://awards.realscreen.com/winners/winner/2012 (last visited Apr. 20, 2023); 2014 Winners, Realscreen Awards, https://awards.realscreen.com/winners/winner/2014 (last visited Apr. 20, 2023); 2019 Winners, Realscreen Awards, https://awards.realscreen.com/winners/winner/2019 (last visited Apr. 20, 2023); see also Nikki Nguyen, ‘RuPaul’s Drag Race’ Wins Award of Excellence: Competition & Best Competition: Talen & Studio-Based at the 2021 Realscreen Awards, The WOW Rep. (Jan. 26, 2021, 3:34 PM), https://worldofwonder.net/rupauls-drag-race-wins-award-of-excellence-competition-best-competition-talent-studio-based-at-the-2021-realscreen-awards/.
[54] See RuPaul’s Drag Race: Awards & Nominations, Television Acad. | Emmys, https://www.emmys.com/shows/rupauls-drag-race (last visited Apr. 20, 2023).
[55] See, e.g.,David Moye, Another Republican Lawmaker Trying to Ban Drag Shows Apparently Once Dressed in Drag, Huffpost (Mar. 1, 2023, 8:28 PM),https://www.huffpost.com/entry/texas-republican-lawmaker-nate-schatzline-anti-drag-bill-dressed-in-drag_n_63ffe95ee4b0d14ed6a59e4e.
[56] See Jocelyn Kiley & Shiva Maniam, Lesbian, Gay and Bisexual Voters Remain a Solidly Democratic Bloc, Pew Rsch. Ctr. (Oct. 25, 2016), https://www.pewresearch.org/fact-tank/2016/10/25/lesbian-gay-and-bisexual-voters-remain-a-solidly-democratic-bloc/.
[57] For example, see two weekly brunches at City Tap Kitchen & Craft in Dupont, Washington, D.C. City Tap Kitchen & Craft, https://www.citytap.com/location/city-tap-house-dupont/ (last visited on Mar. 10, 2023).
[58] See generally Carlson, supra note 32.
[59] Id.
[60] Id.
[61] James Factora, A Federal Judge Has Temporarily Blocked Tennessee’s Drag Ban, them (Apr. 2, 2023), https://www.them.us/story/tennessee-drag-ban-blocked#:~:text=News-,A%20Federal%20Judge%20Has%20Temporarily%20Blocked%20Tennessee’s%20Drag%20Ban,law%20unfairly%20targets%20drag%20performers.&text=The%20day%20before%20the%20nation’s,for%20violating%20the%20First%20Amendment.
[62] Order Granting Temporary Restraining Order, Friends of George’s, Inc. v. Tennessee, No. 2:23-cv-02163-TLP-tmp (W.D. Tenn. W. Div. Mar. 31, 2023), https://int.nyt.com/data/documenttools/tennessee-drag-ruling/20a05d3b4f4167f6/full.pdf.
[63] Factora, supra note 61.
[64] Id.
[65] See generally Restrepo, supra note 1.
[66] Id.; for many drag performers, entertaining through hyperbolic gender expression is their profession and livelihood. See, e.g., Sad BRUNCH, https://www.sadbrunch.com/ (last visited Mar. 17, 2023). Organizations like the ACLU have recognized and honored this by creating the Drag Defense Fund to fight for the protection of everyone’s right to creatively express themselves and gender identities.Support the Drag Defense Fund, ACLU, https://action.aclu.org/give/support-drag-defense-fund (last visited Mar. 17, 2023); RuPaul’s Drag Race (@rupaulsdragrace), Instagram, https://www.instagram.com/p/Cpiygy4tPWK/ (last visited Mar. 16, 2023) (RuPaul sharing his reaction to the wave of drag bans on March 8, 2023, “They think our love, our light, our laughter, and our joy are signs of weakness but they’re wrong because that is our strength.”).
University of Baltimore Law Review 