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Drag Show Bans: A Legal Summary [1]

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Date: 2023-03-12

There are two legal strategies being used to attack drag shows. The first is to criminalize the performers, and the other is to classify venues that host drag shows as “adult entertainment establishments” and subject them to the same kind of licensing, permitting of performers, and zoning restrictions that apply to things like, oh, strip clubs.2

Criminalizing Performers

There is one state (Tennessee) that has already enacted a ban on drag performances, and four other states have similar provisions pending; these states use a dead-ahead approach to a ban without routing through other areas of the law, although most of them are housed in the portions of the states’ codes dealing with ‘sexually oriented businesses’.

In Tennessee it will be illegal as of July 1, 2023 to be a “male or female impersonator” who provides entertainment that “appeals to a prurient interest.” This prohibition applies to any performance on public property or where it could be viewed by a minor. A violation for a first offense is a misdemeanor, and a second or subsequent offense is a felony.

Not sure how Pride is supposed to happen now but I’m guessing that was their plan.

Nearly identical provisions are pending in Arizona, Kentucky, North Dakota, and Oklahoma with similar prohibitions on public performances or performances with minors present.

Understand deep, deep down in your soul that this is a coordinated nationwide effort and they have a massive head start on us.

Moving along…in their bill, Oklahoma goes beyond the generic “male or female impersonator” language to specifically define “drag performer”:

”Drag Performer” means a male or female performer who adopts a flamboyant or parodic feminine or masculine persona with glamorous or exaggerated costumes and makeup.

Telling the queers not to be flamboyant or glamorous is like telling water not to be wet.

Two additional states, Missouri and Montana, approach a Drag ban through their state’s regulatory system for ‘sexually oriented businesses”; you generally have to look beyond the proposed legislation to find the punishment for a violation. In Missouri the punishment is criminal, in Montana it is civil.

The bills in both of these states have what I call a Jesus Provision, which adds to the state’s definition of a “sexually oriented business” any establishment that provides an audience of “two or more” to watch a drag performance.

While I think Jesus would most definitely would love Drag, I’m not sure he’d want his name on this.

In each state, by leveraging the existing laws re: sexually oriented businesses (where it is illegal to have a person under 18 in those establishments), it would arguably be a crime or civil violation to allow anyone under 18 to view any drag performance.

I say arguable because, well, look at Missouri’s definition of “drag performance”:

“a performance in which a performer exhibits a gender that is different from the performer’s biological sex as assigned at birth using clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs before an audience for entertainment”

I very much look forward to being arrested in Missouri for….existing and singing in my car.

Zoning Restrictions

This isn’t the sexiest thing for most people, but I kind of love property law. There is a huge amount of power held by state and local governments simply because they can regulate what is permitted on which parcels of land.

At least five states (Arizona, Kentucky, Missouri, Montana and Tennessee) have bills pending that would subject establishments hosting drag shows—see the Jesus Provision above—to the same zoning and regulatory restrictions as other sexually oriented businesses. What does this mean in practice? In some states, such an establishment has to be a set distance (e.g., 1,000 feet) from a school, day care, etc. In others, additional licenses or permits need to be obtained for the business to operate.

How would this apply to, oh, a gay bar that wants to host a drag show? I’m guessing the people proposing this legislation don’t care. In addition, in these cases civil and criminal penalties often also extend to the persons who host a performance where a minor is present…

It’s taken me a solid set of hours this weekend to dive in just on these Drag Show bans. Go check out Erin in the Morning for a more complete roundup. I try to bring a lawyer’s take and a Generation X angle to the discussion, but Erin is doing amazing work and you should give her a follow if you can.

Fight like hell, y’all. Fight like hell.

1 So far, only Arizona’s SB1698 carries a sex offender registration requirement and even though it may continue to proceed in the legislature, the Democratic Governor would almost definitely veto and there aren’t enough votes to override it.

2 No shade on anyone in the adult entertainment industry!!

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[1] Url: https://www.dailykos.com/stories/2023/3/12/2157681/-Drag-Show-Bans-A-Legal-Summary

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