A Bad Year for Drag Queen Foes

New anti-drag laws were deemed unconstitutional in every state where they were challenged this year.

This was the year Republican lawmakers went all-in on targeting drag performers—and got a resounding nope from federal courts. In all four states where anti-drag laws were challenged this year, federal judges ruled them unconstitutional.

That's good news for freedom of expression and bad news for the new politics of anti-queer hysteria brewing on the right.

Drag performances are neither de facto obscene nor dangerous to children, no matter what some conservative lawmakers have been insisting. But a series of high-profile "drag queen story hours" (in which drag performers read children's books to kids, sometimes at public libraries) and viral social media posts of some parents taking children to all-ages drag shows have spawned something of a panic in recent years. Some have likened these events to allowing kids at strip clubs—even though performances and readings involved no nudity—or suggest they're attempts to "groom" children into "distorted thinking about their identity, relationships, family, and sexuality."

"Ignoring the blatant lies about what happens at Drag Queen Story Hours (TRUTH: age appropriate children's books are read to children in a room with librarians and parents present), we are left with only one reason to seek to ban a drag show," Ricci Levy, president and CEO of the Woodhull Freedom Foundation, a nonprofit that advocates for sexual freedom, tells Reason via email. "It's the same reason behind most censorship. It's the same reason for most book bans. It's all about sex, sexuality, and sexual expression and legislators' and parents' discomfort and distaste (or hidden fear that if it exists, they'll be tempted to participate) for expression that challenges their 'norm.'"

 

Judges See Through Anti-Drag Laws

Of course, lawmakers generally know better than to try to ban drag performances outright, since the First Amendment prevents simply nixing a type of speech—and performances are speech—because authorities don't like it. Instead, they have tried to revise definitions of obscenity (which is not protected by the First Amendment) or adult entertainment (which is subject to special regulations) to include drag performances.

But judges saw right through this. In June, judges ruled against new drag regulations in Florida and Tennessee. And this past fall, judges ruled against similar laws in Montana and Texas.

The Florida law was couched in the language of protecting kids from seeing obscene live performances. But Judge Gregory Presnell of the U.S District Court for the Middle District of Florida found this rationale lacking. "Florida already has statutes that provide such protection," wrote Presnell. "Rather, this statute is specifically designed to suppress the speech of drag queen performers." Presnell rejected the state's motion to dismiss the case and held that the law couldn't be enforced as a trial on the merit of the case played out.

The state has since appealed—and the U.S. Supreme Court refused to let Florida enforce the law while the appeal proceeds.

In Tennessee, Senate Bill 3 defined "male or female impersonators" as a type of "adult cabaret entertainment" subject to special regulations (including not being allowed to take place on public property or in any place where a minor might see it) if their performance met conditions that could get it deemed "harmful to minors" under Tennessee law. Judge Thomas Parker of the U.S. District Court for the Western District of Tennessee—a Trump appointee—held that the law violated the First Amendment.

The law "was passed for the impermissible purpose of chilling constitutionally-protected speech," Parker wrote in his decision. While "Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors," the law was too broad, too vague, and too viewpoint-based to pass constitutional muster.

A federal judge held in September that S.B. 12, the Texas law targeting drag performances, was an unconstitutionally vague and overbroad restriction on speech that could not be enforced. "The Court sees no way to read the provisions of S.B. 12 without concluding that a large amount of constitutionally protected conduct can and will be wrapped up in [its] enforcement," wrote U.S. District Judge David Hittner in his opinion. "It is not unreasonable to read S.B. 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation."

And in October, Judge Brian Morris of the U.S. District Court for the District of Montana blocked enforcement of a Montana law limiting drag performances and readings in public libraries and schools. "No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms," Morris wrote in his order. The district court has stayed proceedings for now after the defendants appealed to the U.S. Court of Appeals for the 9th Circuit in November.

A federal judge also ruled against the Utah town of St. George in its attempt to deny a drag show a permit to perform in a public park.

 

Well…Mostly

It wasn't all good news for those challenging restrictions on drag performances this year.

In September, U.S. District Judge for the Northern District of Texas Matthew Kacsmaryk (the same Kacsmaryk who held that abortion pills should be illegal) denied a motion for a preliminary injunction against a university that had banned a campus drag performance. The plaintiffs, represented by the Foundation for Individual Rights and Expression (FIRE), have since appealed and the case is now with the U.S. Court of Appeals for the 5th Circuit.

"This case is about a public university president openly defying the Constitution to ban students' onstage drag performances from campus public forums because he believes drag shows send a 'demeaning' and 'derisive' message," FIRE's appeal brief states. "Defendants cannot justify silencing Plaintiffs based on their preferred values" and that argument "must lose here. The First Amendment's promise of viewpoint neutrality, so vital to free expression at public colleges and universities, demands it."

 

Why Now?

At first blush, it might seem nuts that targeting drag performances has become a popular theme in the 2020s. Drag is arguably more mainstream than ever, having gone from a subversive form of underground expression to the stuff of reality TV shows, bachelorette-party outings, and library story hours. While it still can be radical and political, it has largely been divorced from these roots.

But gender panic now fills the political void left by the growing acceptance of gays and lesbians. It's been good business for culture warriors and for a conservative movement with little fresh policy vision to power it—an easy way for reactionary politicians to capture some of the cachet they no longer get from fear mongering about things like gay marriage.

And nowhere is the blurring of gender norms embodied so visibly and so maximally as in drag queens.

Looked at through this lens, their new role as a locus of Republican ire makes sense. And since most people are unfamiliar with drag shows and the venues where they may take place, it's easy to distort their meaning and to whip up moral panic about them.

"Lawmakers have been proposing legislation that essentially treats drag shows as lewd conduct, regardless of any sort of nudity or sexual activity," noted Scott Shackford for Reason last December. "Because the moral panic exaggerates what's actually happening, the 'solutions' proposed are extremely broad and can cause additional harms rather than prevent them."

 

What's Next?

It would be nice if lawmakers in Florida, Texas, Tennessee, Montana, and Utah were an anomaly on this front. But drag show restrictions have been introduced in more than a dozen states, including Arizona, Kentucky, Nebraska, and Ohio, throughout this year.

The recent federal court rulings should deter those seeking to define drag performers—and gay, lesbian, and transgender themes more broadly—as intrinsically lewd, erotic, or harmful. Alas, lawmakers rarely let little things like constitutionality or the odds stop them from proposing and passing bad laws.

As long as politicians, activists, and grifters are able to whip up attention by framing drag queens as corrupters of children and an existential threat to decency, we'll probably see more of these attempts in 2024. Hopefully, we'll also see courts and the First Amendment continuing to thwart their plans.