Threats to free artistic expression
Tracking and responding to legislation impacting the creative sector
A large minority of states have introduced legislation to restrict drag performances, responding to the perceived need to “protect children” from situations where they might come into contact with a person dressed in drag. The most common instances, which a majority of the legislation seeks to regulate, are events that take place in libraries and schools. These are commonly known as Drag Story Hour.
This movement though is not limited to drag performances, but has expanded to trying to regulate which books children may read, what subjects they can learn in schools and a variety of topics around LGBTQ+ people.
Currently, there are over 45 pieces of legislation in 20 states which seek to address this perceived issue. Of these pieces of legislation, the vast majority will likely not become law but rather operate as “messaging bills” which seek to show voters that legislators are responding to an issue but in reality, don’t have a high likelihood of passing. See below for an explanation of the bills that have become law.
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State Activity & Advocacy Resources
EXPLANATION OF BILLS THAT HAVE BECOME LAW
Overview: So far, there have been six pieces of legislation that have become law. There are technically seven pieces, but the Tennessee law are two companion bills, which we count as one. Of the six, judges in Tennessee, Florida, Arkansas and Texas have issued injunctions preventing the laws from being enforced.
Not all legislation is the same, but break down into three categories:
- Laws that overtly prohibit drag story hours in libraries, schools or other public buildings. There are only two bills in this category: Tennessee and Montana.
- Laws that serve to project children from obscene materials, but do not mention drag performances. There is one law in this category: Arkansas which is concerned with physical books in libraries which are deemed "obscene".
- Laws that seek to regulate adult performances and prohibit minors from viewing them. There are three laws in this category: North Dakota, Florida and Texas. Several of these bills originally sought to regulate drag performances but that language was removed before the bill became law.
In addition to the Arkansas legislation, which originally referenced drag performances, several other states have passes laws that regulate which books minors can view at libraries. Those states are: Iowa, Louisiana, and North Dakota.
See below for more information.
Tennessee: Companion Bills HB0009 and SB003. Signed into law on March 22, 2023.
- This law creates an offense for a person who engages in an adult cabaret performance, which includes male or female impersonators, on public property (libraries or schools for example) or in a location where the adult cabaret performance could be viewed by a person who is not an adult.
UPDATE: 6/2/23 U.S. District Judge Thomas Parker (who was appointed by President Trump) ruled that the new Tennessee law prohibiting drag shows in libraries (or other places kids could see one) was unconstitutional. Judge Parker wrote that the measure was passed “for the impermissible purpose of chilling constitutionally-protected speech.” It is also worth noting that the Tennessee Attorney General did not immediately move to appeal the Judge’s decision, but rather stated he would appeal the ruling “at the appropriate time.”
Arkansas: SB81 Signed into law on April 4, 2023.
- This law regulates libraries with regard to obscene materials including performances. The law does not use the terms "drag" or "cabaret" and appears to be more concerned with items (books) that depicts or describes nudity, sexual conduct, etc.
UPDATE: 7/29/23 U.S. District Judge Timothy Brooks issued a preliminary injunction against the law, which was to go into effect on August 1st. Arkansas Attorney General Tim Griffin stated that his office would be "reviewing the judge's opinion and will continue to vigorously defend the law." I will note that the Attorney General did not immediately appeal the decision which indicates that they realize the law is vaguely written and is likely unconstitutional.
North Dakota: HB1333 Signed into law on April 25, 2023.
- This law regulates adult oriented performances. The original language of the bill included regulating "adult Cabaret performances" (ie drag performances) but this language was removed in favor of more general language that should not affect drag performances in libraries/ schools or the arts and culture in general.
Florida: S1438 Signed into law on May 5, 2023.
- This law it titled the Protection of Children Act and it regulates exposing children to adult live performances. The bill does not mention drag performances and should not effect the arts and culture in general.
UPDATE: 7/19/23 U.S. District Judge Gregory Presnell issued a preliminary injunction against the Florida law and has clarified that it applies statewide, not just to the plaintiff's restaurant. The law can not be enforced until a trial is held to determine its constitutionality.
Montana: HB359 Signed into law on May 18, 2023.
- This law prohibits minors from attending drag performances. The bill prohibits schools or libraries from hosting any drag performance and prohibits any business from allowing children to see an adult oriented drag performance.
Texas: SB12 Signed into law on June 18, 2023.
- This law regulates sexually oriented performances. It doesn't mention drag shows, but the language is still vague enough that it could be used by a local prosecutor to try to prohibit a drag story hour, etc. We note that there were several other bills in Texas that did not advance this legislative session which did explicitly seek to regulate drag performances which did not make it out of committee.
UPDATE: 8/31/23 U.S. District Judge David Hittner issued a temporary restraining order against the law, which was to go into effect on September 1st after a two day court hearing. Judge Hittner wrote in his order that the new law is likely unconstitutional because it violates the First Amendment. He also stated that he was going to prepare a more permanent order against the law. The Texas Office of the Attorney General stated that they will pursue all legal remedies possible to aggressively defend the law. Again, I will note the general nature of this response which indicates that the state probably knows they are on thin constitutional ground.
Iowa: SF496 Signed into law on May 26, 2023.
- This law broadly establishes "parents rights" to make decisions affecting their child in schools. This extends to regulating school libraries containing "age appropriate materials." Unfortunately, this definition is broad and allows for schools to ban or restrict books which many do no consider obscene or inappropriate for children such as a book that contains an LGBTQ+ character.
Louisiana: SB7 Signed into law on June 28, 2023.
- This law establishes a fundamental right of parents to make decisions for the care of their children. This includes regulating what books minor children may view at libraries. Like Iowa, the definition is broad and calls for libraries to ban or restrict books which many do no consider obscene or inappropriate for children.
North Dakota: SB2360 Enacted into law on April 28, 2023.
- This law was passed over the governor's veto. While not as broad as the Louisiana legislation, this law specifically regulate what books minor children may view at libraries. Again, the definition is broad and calls for libraries to ban or restrict books which many do no consider obscene or inappropriate for children.
STATE ADVOCACY RESOURCES