Bye Wig: Anti-Drag Legislation Meets the First Amendment
By: Peter Quinn, William & Mary Law Student, Class of 2023
The early years of this new decade have seen an explosion of legal efforts to derail the project of LGBTQ+ rights, especially when it comes to transgender people. One major front in the current conservative battle against trans people is drag performances. While drag as a concept and an art form is ancient, in its current form drag performances involve a sort of variety show or cabaret environment, with drag queen performers of various gender identities singing, dancing, lip syncing, performing comedy, or even simply appearing on stage while impersonating men or women in often-elaborate costumes and dress. Given the explosion of drag culture’s popularity in recent years–ranging from internationally-touring live performances to scripted television to the now-ubiquitous reality competition show RuPaul’s Drag Race–it is perhaps no surprise that conservative state legislators have turned their attention to it as a “political winner” of a culture-war issue.
Many social conservatives have long been skeptical of drag queens and performers, but only as part of a larger reaction against traditional gender roles; the largest front in that war had traditionally been sexual conduct and marriage rights for same-sex partners. Having lost those legal battles, and as public opinion on gay, lesbian, and bisexual people has reversed dramatically, social conservatives in the age of hyper-partisanship have recently turned specifically to trans people and similar issues to create the same sort of anxiety among the American public.
Part of the initial framing of these new attacks included a professed concern that children might be “sexualized” or be exposed to “radical gender ideology” by seeing or even being around trans people, a familiar trope used in previous morality campaigns targeting LGBTQ+ people. Although most drag queens have traditionally self-identified as cisgender men, it has been an easy leap for legislators and commentators to conflate trans people with drag performers, given that both may challenge traditional expectations of gender-based appearance and conduct. People who once were indifferent or even celebratory of drag as an art form now see its value as a political punching bag.
The most attention-grabbing effort to curtail or even ban drag performances has been Tennessee’s Senate Bill (“S.B.”) 3, signed into law on March 2, 2023. As of this writing, it is the only such bill to have passed, and even if others join it, it is likely to be one of the more comprehensive “bans” on drag. However, the actual text of the bill is quite vague, leading to concerns about how, when, and against whom it may be enforced. The bill criminalizes “adult cabaret performances” in locations where they could be viewed by minors, and defines such performances as including “male or female impersonators who provide entertainment that appeals to a prurient interest.” This raises almost limitless questions.
Are performances in locations where minors could normally be (but not during the performance) such as restaurants or other venues barred under the law? What counts as a “male or female impersonator?” What level of sexually suggestive humor or dancing would be sufficient to “appeal to the prurient interest?” What if the content of the performance appeals to the prurient interest as well as other higher-minded interests? The reader can likely conceive of several more questions along these lines as well.
This uncertainty may be a feature of the Tennessee legislation, rather than a bug. As discussed below, “drag bans” very likely run afoul of the First Amendment, and so a vague law like S.B. 3 would have all the benefits of chilling the expression of worried performers and venues–leading to cancelled shows and an exodus of performers who are unsure whether they would be charged under the law–without the drawback of being facially unconstitutional. Existing in this twilight space where no one is quite sure what the law actually bans or how authorities will attempt to enforce it, it accomplishes the same goal of an outright ban: silencing LGBTQ+ voices and expression and driving them underground or out of Tennessee entirely.
Other states also have pending legislation that alarm trans legal advocates, some of which are less vague than S.B. 3. In West Virginia, S.B. 252 would label as obscene any “transvestite and/or transgender exposure, display, or performance;” such a label would bar any such conduct or material in or within half a mile of schools. The text of this bill would seemingly criminalize any trans person from singing, reciting poetry, doing stand-up comedy, or the like at any venue in any city, given that nearly every location in an average city is within half a mile of a school. This is also to say nothing of what a “transgender display” could even mean, triggering some of the same vagueness concerns from Tennessee’s ban (is simply existing in public in gender-affirming dress a “display?”).
Similarly to West Virginia, L.B. 371 in Nebraska defines drag performances in such a way that anyone who performs before an audience while exhibiting a gender identity different from that assigned at birth runs afoul of the law if the audience includes anyone under the age of nineteen. It further bars any state agency from using state funds for drag shows, leading to the possibility that a school assembly to hear a trans poet recite poetry or a trans student performing in a school play would result in criminal charges and fines for both the school and the performer.
Finally, though it has morphed into a more generalized drag ban during the amendment process, the original version of S.B. 1030 in Arizona specifically barred drag shows from occurring on Sundays before noon, a peculiarly specific attack on the phenomenon of “drag brunches.”
Note: since the time of this writing, Arkansas has enacted a similar law targeting “adult-oriented performances,” and Montana has, among other restrictions, targeted “drag queen story hours” and provided minors who attend drag shows with a cause of action to sue drag performers for “psychological, emotional, economic, and physical harm.”
These bills seem destined for the dustbin of history, not merely because they represent a temporary retrenchment against LGBTQ+ rights that has largely proven unsuccessful, but also because they likely run afoul of the First Amendment as it has been understood for the past 70 years. Three major areas of First Amendment jurisprudence are relevant here. First, Supreme Court precedent holds obscenity as unprotected under the First Amendment, but creates a high bar to find a work or expression obscene, and one that drag shows obviously and easily fail to meet.
In Miller v. California, the Court articulated what has become known as the Miller test to help put boundaries on what might otherwise be a very nebulous concept. First, applying local community standards, a court must ask whether the work or expression taken as a whole would appeal to the prurient interest. Doubtless, the Tennessee ban uses similar language in an attempt to clear this hurdle, but historically “appealing to the prurient interest” meant only appealing to sexual desire or arousal, while drag shows–even those that include sexualized content–obviously appeal to other artistic, comedic, and aesthetic interests beyond solely sex. Next, to be obscene under Miller the work in question must depict sexual conduct that is specifically defined by the state law in question.
No specific sexual content is defined in these laws with the exception of the West Virginia bill, and even there it is unclear whether the state could prove that drag shows depict “ultimate sexual acts” as provided by that bill’s language. Finally, an obscene work taken as a whole lacks seriously literary, artistic, political, or scientific value; it is almost laughable to argue that drag shows, which incorporate intricate choreography, vocal performances, and comedy, lack artistic value, to say nothing of the political valence of dressing in a way that subverts societal expectations of gender identity.
Clearly these bills cannot rely on an obscenity standard to sustain their attacks on free expression; states do not have the power to “protect” citizens from ideas that they find offensive using the doctrine of obscenity, and minors do not have any special exemption here.
Next, federal courts have taken a dim view of vague laws that impact First Amendment protections. Without sufficient notice of what exact conduct is prohibited, states run into due process problems; Tennessee’s bill in particular might be subject to such an inquiry if enforced or applied in ways that drag performers and patrons fear.
An example of such a law comes from Gooding v. Wilson, where the Georgia law in question criminalized “opprobrious or abusive language tending to cause breach of the peace.” While also invalidated on overbreadth grounds–the law swept in a large chunk of profanity that would be protected under the First Amendment–the language describing offending speech as “opprobrious or abuse” was also sufficiently vague to not allow citizens to conform their conduct to the law.
As to drag bans, the vague definitions typically employed to describe what specific conduct is prohibited may doom these laws to a similar fate. What is “transgender exposure” or “display?” How much of a performance needs to “appeal to the prurient interest” to be banned? What counts as “sexual content?” These are all minimally or simply undefined standards used throughout drag ban laws, and any state that enacts such laws will likely have to answer to the vagueness doctrine in court.
Note: since the time of this writing, a federal district court has found just that, enjoining enforcement of the Tennessee law via a temporary restraining order on vagueness and overbreadth grounds.
Finally, and perhaps most importantly, the Supreme Court has also defined what exactly counts as “free speech” when it comes to expressive conduct like drag shows. The definition for expressive conduct comes via Spence v. Washington, and requires that a speaker intend to convey a particularized message and in context an audience would be very likely to understand that message.
Drag performances clearly intend to convey a variety of messages depending on the specific type of entertainment–singing conveys the message of the song and aesthetic enjoyment, comedy conveys a point of view on the subject matter, etc.–and the enthusiastic audiences at those performances unmistakably understand what the performers are conveying. Because drag performances are expressive conduct, they are protected by the First Amendment, and the state would need to satisfy one of two burdens to prove their restrictions are permissible.
The Court in United States v. O’Brien dealt with an expressive conduct issue–an antiwar protestor burning his draft card–where the conduct itself was criminalized. Laying out what has become known as the O’Brien test, the court determines whether to impose the difficult standard of strict scrutiny or the more forgiving standard of intermediate scrutiny depending on whether the law in question regulates on a content-neutral basis. If so, intermediate scrutiny comes into play, but if not, the almost always fatal strict scrutiny applies.
Any law restricting drag performance that bases its restrictions on the identity of the performer–someone who is a “male or female impersonator” or engaging in a “transvestite or transgender display”–obviously fails content neutrality in several ways. As laid out in the recent case of Reed v. Town of Gilbert, laws are not content-neutral when they facially discriminate based on communicative content, purposefully target speakers or speech because of the message they express, or discriminate against specific speakers but not others.
Most anti-drag laws fail all three definitions. They discriminate based on the content of the expression because performers dress and act in line with a gender that does not conform with their gender assigned at birth; they target speakers because of the message they express based on the many anti-trans rationales for these laws proffered by legislators and commentators alike; and they target speakers that do not conform to traditional ideas of gender but not others who do conform to such orthodoxies.
These bans would thus get strict scrutiny and easily fall. To survive, the state would need to show that its compelling interest in enacting such a law is narrowly tailored to the law itself, an easily dismissible notion here. State legislators offer the interest of “protecting children from sexualization;” even assuming that this is their actual motive and that drag performances expose children to sexually explicit material (and both are truly monumental assumptions), the state could instead restrict any number of other more common instances of children viewing or accessing sexually explicit material or conduct, which are rampant in modern society. Because there are clearly less restrictive means available to protect children from sexual themes, these laws would almost certainly fall when matched against the First Amendment.
So, while drag performers, trans people, and LGBTQ+ advocates and allies continue to feel justified concern at the wave of anti-LGBTQ+ legislation washing over statehouses across the country, there is reason for hope. While drag bans are some of the most visible targets of this reactionary legislative push, they have a tall order to overcome an infringement on protected First Amendment rights of performers, and thus are quite susceptible to legal challenges. Whether more bills like Tennessee’s S.B. 3 pass in other states, local LGBTQ+ advocates should not fear making their case in court, as decades of First Amendment law are on their side.
About the author:
Peter Quinn graduated magna cum laude from William & Mary Law School in 2023 where he served as President of W&M OUTlaw. Peter also served as Lead Notes Editor of the William & Mary Law Review Vol. 64 and on the Moot Court Team board. Before law school, Peter was a high school teacher for nearly a decade, where he was elected vice-president of the local education union, directed the district’s debate team, and was faculty advisor for the Gay-Straight Alliance. After taking the bar, Peter will join Lowenstein Sandler LLP as an associate in their Roseland, New Jersey office.