Tennessee Enacts Nation’s First Law Restricting Drag Shows
Tennessee became the first state in the country to restrict public drag performances on Thursday. Republican Gov. Bill Lee also signed legislation banning minors from receiving gender-affirming care and prohibiting surgeries and hormone treatments for transgender youth.
The Republican governor, who appeared in drag in a 1977 high-school yearbook photo, promised to sign the measure, which restricts “adult cabaret entertainment” in public spaces or locations where it might be seen by minors. The vague term is defined as “adult-oriented performances that are harmful to minors” that is in line with existing obscenity law, but also “that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.” First-time violators will be slapped with a misdemeanor and repeat offenders will face felony charges.
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Some in the legal profession question the ability of the new law to be enforced. Obscenity law already covers nudity and sexual conduct around minors, and no one seems to be aware of any past instance where a drag queen was cited for obscenity.
“I don’t know that this new law creates any new criminal behavior,” says criminal defense attorney Bryan Stephenson, who has pledged to represent pro bono anyone arrested in violation of this law. “Looking at our obscenity statute, we already have a definition of ‘harmful to minors.’ We already have a full definition of sexual conduct. All this stuff is covered, man! It’s like, ‘Let’s create a new law to focus on male and female impersonators so we can target that community.’”
That uncertainty about what, if anything, will be affected and policed for being “harmful” might in fact be the point. Not having a clear definition of where the line is drawn could frighten people into obedience.
“Maybe the law actually does something more than create a new definition of obscenity,” says Tom Lee, attorney for the Tennessee Pride Chamber. “Maybe what this law does is that it blurs the line so completely that people don’t know where it is anymore and will be afraid to come anywhere near it for fear of crossing over it without knowing.”
“That’s where the chilling of the free speech [and] free expression comes in,” Stephenson adds. “The lawmakers will be happy just raising the specter — ‘You could get arrested for this. You better just keep your ass at home, or keep your ass inside the club.’ That’s about as anti-First Amendment as you can get.”
But when it comes to the application of criminal law, Lee argues, being vague isn’t an option.
“The criminal laws don’t work that way and they can’t work that way because we’re talking about people’s liberty,” Lee says. “When you put that liberty at stake, people deserve to know exactly what it is that’s going to send them to prison. This bill just doesn’t do that.”
The “harmful to minors” language was added as an amendment to the original bill and appears to soften, or at least obscure, the more restrictive line that the bill’s authors took in the beginning. Drag shows can still happen as long as they’re not “harmful to minors,” though the suggestion seems to be that the existence of a drag show is the harm. (The same apparently does not apply to the hordes of bachelorette parties roving the streets of downtown Nashville with penis-shaped necklaces and sex toys.)
“Why zero in on drag queens?” Stephenson says. “When it could just as easily say, ‘Alright, we don’t want children seeing any type of this behavior from any person whatsoever,’ but we’re not singling out drag performers. It’s odd.”
There’s also the chance of the law being applied differently depending on where one is standing. Bigger, more progressive cities like Nashville and Memphis may be more relaxed about actually enforcing and prosecuting it, but that could be a very different story in more conservative rural communities.
“Citizens should be able to count on the law being the same, because it is the same on the statute books,” Lee says. “You should be able to count on the same protection of the law or be concerned about the same limits of the law regardless of where you live.”
Tennessee’s anti-drag legislation was one of several similar bills being weighed across the country, and one of several bills aimed at the state’s LGBTQ+ community. There are currently multiple bills targeting trans healthcare and trans teens, including one that prohibits their participation in school sports unless they play with their birth-assigned gender. There’s also legislation that is attempting to make it illegal to change one’s sex on official documents like birth certificates and driver’s licenses.
Along with the drag legislation, the bills have served to embolden far-right extremists. According to Tennessee Holler, a banner that depicted the state of Tennessee with a swastika in its center was hung from an I-65 overpass in downtown Nashville on Thursday. Its message reportedly thanked the governor for “tirelessly working to fight tr—ies and f-gs” and vowing to “secure a future for white children.”
Though Nashville’s musical community hasn’t been as vocal around the current spate of anti-trans legislation, the drag bill has caused some to rally. Last week, major entertainment communities including Red Light Management, Sandbox, Warner Music Nashville, Universal Music Group, and Sony Music Group all signed a letter urging Gov. Lee not to sign the bill into law. Of note, BMG, Big Machine, and Big Loud (the home of Morgan Wallen) did not sign the letter.
The drag bill will go into effect on July 1 — technically after Nashville’s 2023 Pridefest, where drag is a feature of the entertainment lineup. What happens then is anyone’s guess.
“Either it does nothing, or it does a tremendous amount of harm,” Lee says. “And the supporters of the bill kind of said it both ways.”
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