Republicans Lawmakers Are Trying To Ban Drag. First They Have To Define It.

A drag queen battle has emerged at many statehouses this year, but not the kind of lip-sync battle royale you might see on “RuPaul’s Drag Race.” So far this legislative session, Republican lawmakers in at least 16 states have introduced bills that seek to restrict or criminalize drag performances. These bills range from restricting state funding from being used for drag shows to banning Sunday drag brunches. In Tennessee, one such bill limiting drag shows in public has already passed the legislature and been signed into law (by a governor who once wore drag).

Critics of these bills say they are a blatant attack on the LGBTQ community, could put trans individuals at risk and in some cases are unconstitutional. A close reading reveals part of what makes these bills both dangerous and legally dubious: Drag is not easy to define. FiveThirtyEight analyzed language in 29 anti-drag bills from 16 states and found lawmakers have struggled to differentiate between a drag queen and, say, a performer in a Shakespearean play or a trans person who also happens to be a singer. Different amendments have been added to try to narrow the bills to avoid running afoul of the First Amendment, but those changes often muddy the water by using subjective language, which will leave local law enforcement and judges to decide what is and isn’t allowed. Meanwhile, the justification for these bills echoes past eras of heightened LGBTQ discrimination and prejudice.

The variety of definitions in these bills raises a pivotal question: If you can’t explain what you’re trying to ban, should you really be trying to ban it? 

On Jan. 9, the Arkansas General Assembly convened for the first time in 2023. One of the bills introduced that day was Senate Bill 43: an act to classify drag performances as adult entertainment businesses. Basically, the bill would lump any business that hosts drag performances into the same category as strip clubs or porn shops, subjecting them to new and existing regulations, including a ban on performing in front of minors. The first iteration of the bill included this definition of drag: 

A performance in which one or more performers exhibits a gender identity that is different from the performer’s gender assigned at birth using clothing, makeup, or other accessories that are traditionally worn by members of and are meant to exaggerate the gender identity of the performer’s opposite sex; and sings, lip-synchs, dances, or otherwise performs before an audience of at least two persons for entertainment, whether performed for payment or not; and that is intended to appeal to the prurient interest.

Perhaps you can already see a problem. This definition would easily apply to an actor in a Shakespearean comedy — cross-dressing is a recurring trope, they will certainly be performing before an audience and as for “prurient interest,” you only need an entry-level understanding of Shakespeare to be familiar with the Bard’s bawdy tendencies. Other bills, including the one passed in Tennessee, have defined drag performers as “male or female impersonators,” an even fuzzier term.

“It is a very subjective idea of who is and who is not impersonating a male or female, not only because trans and intersex people exist, but also because even within cisgender identities, there’s a lot of variation in how people express their gender,” said Gillian Branstetter, a communications strategist for the American Civil Liberties Union, which has been tracking state-level legislation aimed at restricting drag. “Is Fran Lebowitz impersonating a male if she gets up on stage and gives a reading in her very trademark suit? Is Harry Styles impersonating a female when he performs at a concert in a dress?”

And even if you could draw a line around what is and isn’t a drag performance based on these definitions, the laws could very easily be unconstitutional, Branstetter said — live performances are a form of free expression. To get around this, Republican lawmakers have added language to focus on drag performances that are “obscene” or “sexually explicit,” because obscenity is not protected under First Amendment rights. These often get added in amendments, suggesting that the lawmakers didn’t have a clear idea of what they were targeting with the first drafts. That’s what lawmakers tried with an amendment to that Arkansas bill, changing the definition of a drag performance to: 

A performance in which one or more performers exaggerates sexual aspects of the masculine or feminine body for entertainment purposes; and sings, lip-synchs, dances, or otherwise performs before an audience of at least two persons for entertainment, whether performed for payment or not; and that is intended to appeal to the prurient interest.

Republican politicians are struggling to define drag | FiveThirtyEight

But, again, we’re left with a definition that Dolly Parton could easily trip over. Ultimately, the Arkansas General Assembly scrapped the drag focus of the bill.

However, other states have continued to advance bills that sometimes don’t even bother limiting the definition to only sexually explicit performances. In Arizona, state Sen. John Kavanagh introduced a bill that would prohibit state funds from being used for any drag performance whose target audience is minors. In an interview with FiveThirtyEight, he said he didn’t think it was possible for the state to restrict minors from drag shows other than ones that are overtly sexual which, he pointed out, is already restricted by the state’s sexually oriented business laws. He’s focused on state funding because it’s one lever he can pull, though he said he doesn’t think children should see drag shows at all.

“I think young children would be confused and possibly disturbed at the image of a person who appears to be a biological male, dressed in the rather flamboyant, and sometimes kind of risque drag outfits,” Kavanagh said. “And the second reason I have a problem with it is when they target children, I think there’s an element of indoctrination there. I think there’s an element of ‘Let’s expose ourselves to children and try to convince them that this is perfectly normal.’”

Meanwhile, other state lawmakers, including in Arizona, are moving ahead with the kinds of bans Kavanagh doesn’t think are legal, or with bills focused on sexually explicit performances. Opponents say both approaches are troubling for different reasons. The overt bans — like an Oklahoma bill that would specifically outlaw drag story hours, where drag performers read children’s books to kids — violate freedom of speech, while also specifically targeting both drag performers and often, in the vagueness of their definitions, many trans individuals. Another Arizona bill, for example, bans anyone from “exposing” a minor to a performer who wears clothing or makeup “opposite of the performer’s or group of performers’ genders at birth to exaggerate gender signifiers and roles.” Without clearer definitions, it would be up to local law enforcement to decide who is or isn’t “exaggerating gender signifiers” by the way they dress.

“This not only goes to target the drag community, but the trans community as well, and they’re just trying to live their day-to-day lives,” said Daddy Satan, a drag performer in Arizona. “But these bills give police or law enforcement or anybody else the legal right to discriminate against them just for living their lives.”

The bans on sexually explicit drag shows, meanwhile, are redundant (there are already laws against taking a kid to adult shows), fall victim to the same issue of leaving interpretation of what is “obscene” up to law enforcement, and send the message that drag performers are regularly performing in obscene ways in front of children, a lie that harkens back to discriminatory attacks on the LGBTQ community of the past

“Yes, some drag performance can take on a sexual nature, especially if it’s performed at a club for adults. But like any entertainers, like any professionals, when we do drag story hour we show up knowing our audience, we show up knowing what’s appropriate, what’s appropriate to wear, what books are appropriate to read, ” said Lil Miss Hot Mess, a drag performer and board member for Drag Story Hour, a nonprofit that organizes events where drag performers read to children.

These bills focused on drag performers are part of a larger trend in state legislatures: According to the ACLU, nearly 400 current pieces of legislation threaten the rights and freedoms of LGBTQ Americans, including multiple bills aimed at banning access to gender-affirming care for trans kids. 

“Honestly, I think most of America isn’t here for [it],” Lil Miss Hot Mess said. “I think if you asked most Americans if they wanted our legislators to be banning drag shows versus, I don’t know, trying to get them better health care, I think people would see the ridiculousness of this.”

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