Allllright folks, it’s that time. We’re going to talk about how all these new anti-drag show laws square (or rather, don’t square) with the Constitution and really, with the founding values of our country. Ya know, that ol’ falsely, hand-wringingly professed cHr!$+1An N@Ti0n!!!!! many of us call home.
According to the last count (thank you Time ), at least 14 states have introduced or passed anti-drag bills
A point of clarification, right off the bat: I’m sure some drag shows are very erotic. More power to ‘em. But not all—I’d hazard not even most—drag shows are erotic or even suggestive. Drag performances really run the gamut. It’s not all Tim Curry in the Rocky Horror Picture Show or (the late great) Divine in Pink Flamingos, and it’s not inherently sexual.
I’ll say this, giving the benefit of the doubt to more reserved/repressed viewers. Some drag, e.g. shows like RuPaul’s Drag Race, could evoke shocking feelings in the uninitiated. BUT, such viewers would be mistaking unfamiliarity, melodrama, ostentation, flamboyance, and the sometimes intimidating aesthetic flare of the fashion world for sexuality (…as such viewers are wont to do). I am far from the expert in just how ranging and nuanced the drag world definitely is, but think Nathan Lane in The Birdcage. Think… special edition Barbie dolls dressed by Bob Mackie (other people’s grandmas collect those? Nah? Just me? Well it’s a look).
In recent years, drag has become a pointed refuge for young people who are queer, are starting to feel like they might be, or even just feeling alone (or inspired!). Drag story hours, where drag queens in full regalia read age-appropriate stories to young’uns and preach acceptance, love, and individuality, have cropped up in libraries around the country. There are even children’s drag competitions (see the documentary ‘Drag Kids’), where young kids showcase their ability to lipsync, self-style clothes and makeup, dance, and walk. These activities (it should go without saying, but) are wholly nonsexual. There’s no sexual content, suggestive behavior, or nudity. Ironically enough, the pageants for minors are not too different from those more familiar ones for little girls…except that the drag-based pageants are arguably less exploitative and upsetting.
But hey, them’s my values talkin’!
In any case, drag performances are the target of newest wave of legislative attacks by the religious Right. This kind of bigoted morality politics has been on the rise since Reagan, thrived under Trump, and often hides under the banner of “state’s rights.”
The GOP has been pretty open about their to-do list of social protections to dissolve, and with their ongoing attacks on reproductive rights well underway (birth control next!), they’ve set LGBTQIA+ issues in their crosshairs. The Washington Post reports that anti-trans bills have doubled since 2022. (Though, worth noting— drag doesn’t necessarily feature transgender performers!)
Why the hate? Well, you know how it goes. Hate is repressed fear, anger is repressed sadness, and cultures have embraced homophobia, misogyny, and all related bigotry towards the marginalized or different since time immemorial. I just learned that there’s an arguable Biblical prohibition on cross-dressing in Deuteronomy (I am, tragically, not referring to the character from ‘Cats’). Even if we took that with all grains of salt, ignored the fact that these proclaimed “Christians” cite to the Old Testament (rather than the Christ-featuring, acceptance-preaching, New Testament)….
THIS IS NOT A CHRISTIAN NATION!
We need not even have the (slam dunk anti-religion, btw) argument about personal beliefs of the Founders, because they did us a favor and memorialized their intention to separate (any) church and state in the FIRST AMENDMENT OF THE CONSTITUTION! It’s just wild to me that we’re really having these convos.
Moving on.
HOW THE 1ST AMENDMENT PROTECTS EXPRESSION
Many (though not enough crossing party lines) have recognized the ways that anti-drag laws conflict with the free speech clause of the First Amendment of the Constitution, which prohibits Congress from making any laws abridging freedom of speech (or, also relevant, the people’s right to peaceably assemble). The federal “Congress” part has been extended to apply to state governments too, through a process called incorporation.
“Free speech” has long been interpreted to include expression, or conduct that serves an expressive value in the same way that literal words can. The US places a really high premium on the value of free speech, and is one of the most speech-protective countries out there (compare Germany’s current approach to hate speech- way stricter). Thinking wayyy back to Revolutionary, F-King-George origins, the First Amendment was drafted on the principle of protecting dissent, art, protest, information dissemination, etc—so art and differing viewpoints have always garnered the highest levels of First Am. protection. In fact, just having a “hostile audience,” i.e. speech met with significant disagreement, earns higher protection, because the risk of mob-rule censorship is higher.
Those are the set cornerstones of First Amendment speech protections; the contours of when, how far, and to what content those protections apply have changed with time (and values). And, as I always caution these days, you’ll notice how much of a role the US Supreme Court has played in this evolution…and given the state of SCOTUS right now… all that staid precedent has a big ol’ asterisk. BUT, this is all still the law of the land until or unless them zealots change it.
Speech jurisprudence has always categorized different “types” of speech into tiers of protection, attempting to weigh expressive value against societal harm in doing so (remember the ‘no yelling fire in a crowded theater’ example). Two such categories relevant to our convo (based on how drag opponents have framed the conduct) are “obscenity” and “sexually explicit speech.” Obviously, by using these analyses on drag performances—which again! Aren’t inherently sexual or “obscene” – may feel unpalatable. But we’re saying okay, even IF we don’t have the ambiguous moral argument over that aspect, anti-drag laws STILL violate the Constitution… and that’s what matters legally.
There are hella weeds to get into on obscenity and sexually explicit speech, but I’ll distill. These SCOTUS cases have confronted things like an anti-Vietnam jacket worn in a government building reading “fuck the Draft,” radio stations airing George Carlin’s “Seven Dirty Words” monologue, and mass-mailing ad brochures with images of people engaged in sex acts.
Generally, the analysis first assesses if the material is, uh, really dirty and super offensive— as Miller v. California (the dirty brochure mailing case) put it, would the average person applying “contemporary community standards” think that the content as a whole “appeals to prurient interest;” and does the content depict specific sexual conduct, as described by w/e law is in question, in a “patently offensive way”…? (Note how subjective! Yikes!)
Then, if those questions yield yes-es, the analysis determines if there’s enough “other value” to the content to outweigh the raunchy offensiveness. I.e., Miller again: whether the content, taken as a whole, also completely lacks serious literary, artistic, political or scientific value.
So, you see, our system has actually done a pretty solid job (in theory) ensuring that content with any artistic, informative, or other expressive value beyond just shock and offense is safe under the First!
One other clear takeaway: Restrictions on speech can’t target content based on subject matter or viewpoint. Writing this out, I realize it’s kinda confusing to distinguish the categorical, value-judgment sorting of “types” of speech (like obscenity, yelling fire, etc.)…from this “no subject matter prohibitions” principle. Cause like, isn’t uniformly devaluing obscenity kind of a subject matter prohibition in itself? But remember, even those evaluations of obscenity do a case-by-case weighing of any other societal value; and there is an arguable distinction to be made when you think of subject matter prohibitions as laws that target specific viewpoints. In practice, restricting subject matter/viewpoint based laws means, , e.g., a state government couldn’t ban all Republican campaign signs, or presumably, allow ads depicting heterosexual intercourse but not homosexual intercourse. This concept can go hand-in-hand with Equal Protection arguments.
That viewpoint doctrine arose from AMERICA’S MAYOR RUDY GIULIANI! ‘s attempts to crack down on sexually explicit expression (e.g. X-rated performances and movie showings) in NYC. The Court struck down some of his laws and allowed others: ultimately determining that the laws couldn’t entirely ban content (dirty movies) expressing a certain subject matter/viewpoint (nudie people doing sex). Legal restrictions should instead be “content-neutral.”
The permissible alternative? Laws instead prescribing the time, place, or manner of expressing sexually explicit or obscene content. For example, zoning laws to limit where an X-rated theater can operate, or in that George Carlin-on-the-radio case, regulating the time content airs (to after many minors’ bedtimes), and the manner of its presentation (prefacing with content warnings).
This time/place/manner guideline brings us to the last relevant Free Speech concept:
Public (and less public) Spaces.
Obviously, what you’re allowed to freely express to your friend in your own living room is different than what you can freely express on a subway platform, or in an elementary school classroom. The norms and necessary protections differ from place to place; as such, different spaces have been classified under different Free Speech tiers like “traditional public forum” (parks or sidewalks), “designated public forum” (a public library or public transit station, which the government operates for the people but can still close under their discretion), or “non-public forum” (e.g. mailboxes, or student spaces at a public university; again gov’t run, but only for certain people and not the general public). Then, of course, there are fully private spaces.
You can glean how dry and involved this jurisprudence is, but the big takeaway is that the government (and thus state laws) can control expression in varying places to different degrees, depending on where, why, and for whom a venue operates. A lot of anti-drag laws implicate venues like event halls, parks, schools, libraries, and private businesses that still need state licenses to host certain activities. With school curricula and book bans already sparking conflict, and all the anti-drag wailing over POOR SCANDALIZED CHILDREN!, some of these spaces could become real battlegrounds.
The Equal Protection clause should come into play here, too. (There are two EP clauses in the Constitution—the one applying to state laws, like these, is in the Fourteenth Amendment).
The clause entitles people who are “similarly situated” to equal protection under our laws.
The most surefire equal protection argument in these cases would be a straightforward, no frills sex/gender discrimination challenge.
Some anti-drag laws have directly banned “drag queens,” specifically (s/o to Missouri)—in which case the gender-based equal protection argument would ask, why drag queens and not drag kings?
Even without the “drag queen” language, there’s also an argument to be made that the “similar situation” being treated differently in different genders, thus violating the EP, is…wearing traditionally feminine clothes. In other words, when a woman wears a leotard, skirt, makeup etc. and performs, it’s simply performance, but when a man wears and does the same, he’s violating the law. Thus, an anti-drag law could still violate the EP even if it addresses “cross-dressing by men and women,” because it’s the CROSS-dressing part that implicitly treats genders differently.
Whether there’s enough precedent for the EP applying to gender identity or expression (because god knows, this Court wouldn’t expand coverage there, so we’d need at leeeeast precedent to get there)..is trickier. The best the US Supreme Court has done on equal protection in the LGBTQIA arena has been to extend basic protections to same-sex couples (most significantly with the right to marry in Obergefell v. Hodges). Even then, with a more liberal Court composition, the ruling was narrow and contested by the more conservative Justices. In fact, there’s evidence that Obergefell, the ruling protecting gay marriage, is one of the next Roe-esque landmarks in this Court’s crosshairs
So.
There you have it.
FINALLY on the legal front (I swear), statutes that are too unclear to interpret and uniformly enforce can be “void[ed] for vagueness” when challenged in court. As you’ll see, ne’er has there been a posterchild for absurdly vague, impossible language like an anti-drag statute.
LOOKING AT THE LAWS
Now that we have some of those protections in our mental arsenal, let’s look at the bills we’re working with.
The most common model extends the state laws already targeting “adult entertainment,” like stripping and topless dancing, to include all drag. The existing demonization of those sex work and sex work-adjacent entertainment is its own issue, eh? But that said, those forms of entertainment are different from drag, because eroticism or sexual entertainment is a primary purpose of most nude or semi-nude adult entertainment.
Tennessee’s anti-drag bill has successfully become law. The statute bans “adult cabaret” shows in public spaces where minors can watch.
In an attempt to clarify what they meant by “adult cabaret,” legislators expounded: “adult-oriented performances” that include “male or female impersonators”
While that bill made it into law, it is currently stayed by a two-week Temporary Restraining Order (or TRO). The issuing Federal Judge explained that the “broad language clashes with the First Amendment’s tight constraints.”
Arizona, my tempestuous purple home state, has also seen an anti-drag bill introduced. Having passed the GOP-majority state senate, it currently stands before the state house. Democratic Governor Hobbs, whose veto count of similar red nonsense is already soaring in her first year, has promised to veto the bill if it reaches her desk. The Arizona bill uses that same “adult-oriented entertainment” language, sweeping drag performances into the same category. The existing definition of "adult cabaret" under Arizona law refers to “typically fully nude,” which are a far cry from your average drag performance, a la Nathan Lane in “The Birdcage.” One proponent of the bill decried how drag story hours allegedly “sexualize and indoctrinate children” by very nature.
The penalty provisions are more upsetting still: someone who performs drag to anyone under 15 years old must register as a sex offender and serve at least ten years in prison. It includes penalties for facilitating minors seeing these performances and even those who enter a space where it’s taking place.
Penalties like these obviously also heighten the risks of pushing back, of testing a law’s limits and enforcement, which in turn gives a law more staying power. It’s not a ticket or fine, or an overnight in a holding cell. These are truly high stakes.
So much of this mindset turns on the problematic perception that naked or partially naked bodies, or certain body parts, are inherently sexual. (See also: school dress codes, that school principal recently fired for showing a pic of Michelangelo’s ‘David,’ female nipple censorship, etc.). That’s a philosophical lament for another day.
Oklahoma’s anti-drag bill is also awaiting approval from that state’s House of Representatives, where it seems likely to pass. The bill’s introduction elicited a heartbreaking quote from a 24-year-old drag performer in Oklahoma who’s watched in real time how drag hatred and anti-trans sentiment have gained legal traction together. “A year ago [the GOP was] talking about banning trans people in sports,” Conner Caughlin told Time, they said they were gonna stop there, but no they’re not.”
With language in anti-drag laws often relying on “gender assigned at birth,” there is a lot of statutory overlap between anti-drag and anti-trans issues.
CONSTITUTIONAL CHALLENGES AND BEYOND
On the one hand, applying that obscene, sexually explicit analysis to drag (determining whether it gets full First Am. Protection) is a no-brainer: the average person applying community standards shouldn’t and doesn’t think a drag performance “appeals to the prurient interest,” and a drag performance doesn’t depict “sexual conduct” in a “patently offensive way.” But, the challenge turns on these subjective standards and who’s applying them.
Benchmarks like community standards, average person, patently offensive are all variable on who’s in power or in the majority. Returning to my previous philosophical lament, it only takes a generation of mob rule to define a secondary sex characteristic (breast tissue), present on all genders (the nipple), and used to feed babies as an inherently sexual and prohibited body part. Thus, even the “sexual conduct” qualifier is technically malleable if the loudest voices decide the act of “cross-dressing” is sexual.
Rationality militates repeating, though, that by most definitions (including the dictates of common sense, history, and biology), drag performances are not inherently sexual. The community standards relied upon in an obscenity analysis are also nationwide, rather than statewide, so that technically makes misinterpretation/legal fudging harder.
Plus, the final requirement is that the expression be utterly devoid of redeeming cultural value (art, education, protest, etc.). It takes just one drag viewing to appreciate the fundamental artistry in the fashion, dance, performance crafting, what have you. There’s entertainment value. There’s potential therapeutic and educational value, especially when minors are involved.
Even the most bigoted dissenter could recognize the risk of starting out on such a slippery slope that diminishes expressive value. In the larger US context, this kind of precedent would also stand to swiftly hurt conservatives (who are in a significant numerical minority, and often relish in hate speech protections to spew nonsense on social media and other platforms. That slippery slope isn’t very long).
That slippery slope/blurry line would also be practically difficult. There’s a litany of examples of performers, who are assigned one gender at birth, dressing and performing as another traditional gender. (I tried really carefully to say that accurately and inclusively, I’m sorry if I messed up anywhere!). I mean hell, original Shakespeare, anyone?! Beyond being absurdly confusing, this would be a nightmare to define clearly (already happening) and to enforce. Prohibiting “adult cabaret shows” or “adult-oriented performance,” but without the definitional clarity of nudity, clothing removal, profanity, or actual or simulated sex? Does that include the community college’s rendition of “Cabaret”? Does it include a seminar on how to help your ageing parent with estate planning? You get the idea. This also ties in that “void for vagueness” rationale for invalidating statutes, too.
Indeed, there was already a fumbling attempt at clarification when a high school yearbook photo surfaced of Tennessee’s GOP governor in a dress. The Governor “distinguished” that the law targeted drag, which he described as “obscene and sexualized,” and not “lighthearted school traditions.”
UH.
This raises the side-issue – relatively minor, in comparison to these draconian bans—of why a man dressing as a woman is SUCH a common cultural punchline in our society. The intrinsic comedy we seem to find in that smacks strongly of misogyny AND homophobia/transphobia, but anyways…
Finally, we went through a lot of what the public forum, designated, non-public, so on …risks are, but to knock down one last pin, I must mention that the AZ bill directly references shows in “public spaces.” Public spaces are where the most extensive protections of expressive freedom exist. Good luck. Blammo.
Wrapping it up: out of all the socio-legal crises right now, anti-trans laws are so egregiously opposed to long-standing legal principles that they should fall. Compare the background of artistic free expression protections to, say, Roe v. Wade—it’s a strong legal tradition to oppose.
Still, who knows these days? Striking Roe also involved ignoring precedent, and that action opposed strong legal tradition too. Trump nominees packed a LOT of kangaroo courts around the country. This trend also serves as anti-LGBTQIA writing on the wall, and even if this legislation doesn’t fly, there’s probably more to come.
I’m not going to even dignify the anti-trans ~child protection arguments~ by detailing a refutation thereof. Suffice to say that if my child were lost in a public space, would I rather them seek out a straight cis-gender man or a drag queen? THE LATTER.
The best protection we could aspire to is always federal legislation protecting
gender identity, gender expression, drag performers, sexual orientation, etc. We could also reeeeally use an expansion of the federal bench (and that requires even more Democrats in Congress, and potentially a vote first to repeal the filibuster). So: VOTE in federal elections!
Also, Stay vigilant of the whos and whats of your state government, and VOTE in state/local elections!
There is strength in numbers and attention. So, especially if you’re somewhere where an anti-drag law hasn’t gone into full effect, attend drag performances, host, participate, signal boost, bring friends and older relatives and your kids.
(Twist my arm, right? It’s a fun solution!)
