Drag Story Time

Beyond the Stage: Activists Say Tennessee “Anti-Drag” Legislation Threatens Constitutional Rights and Queer Community

Emma QuinnNews & Insights

By Emma Quinn

Drag is a performance art that has celebrated gender fluidity, self-expression, and self-acceptance for centuries.[1] It is the art of dressing and acting in a heightened gender performance, usually involving comedy, singing, dancing, or lip-syncing.[2] Drag performance became a mainstay in queer nightlife in the 20th century and has continued to grow in mainstream popularity.[3] In recent years, drag brunches, story-times, and bingo nights have popped up throughout the country, exposing new audiences of all ages to the art of drag performance.[4]

However, a new Tennessee statute passed on February 23, 2023 aims to restrict drag performances across the state.[5] The bill amends the state’s existing obscenity law which prohibits “adult cabaret performances” from taking place “within one thousand feet of a child care facility, a private, public, or charter school, a public park, family recreation center, a resident, or a place of worship.”[6] Following the passing of the bill, the obscenity law now includes “male or female impersonators” under its definition of “adult cabaret.”[7]

TN Senate Majority Leader and drafter of the bill, Jack Johnson, told NPR in a statement that “just as current law prohibits strip clubs from admitting children, this legislation would also prohibit sexually suggestive drag shows from being performed on public property, or on any non-age-restricted private property where a minor could be present.”[8] The bill’s sponsor, Representative Chris Todd, added that, in his view, this was a “common-sense, child safety bill.”[9] Rep. Todd filed the legislation after he opposed a public drag show in Jackson, TN, calling the show, “child abuse,” although he admitted he was not aware of the show’s actual content.[10]

Despite Sen. Johnson’s assurance that the measure has “broad support” from Tennesseans, many individuals, including civil rights activists, queer activists, and constitutional scholars, have taken issue with the law. Following the passing of the bill, the Tennessee chapter of the ACLU released a statement explaining, “dance, fashion, and music – essential components of a drag performance – are all protected by the First Amendment … these laws are written so broadly and vaguely that they would allow government officials to censor performers based on their own subjective viewpoints of what they deem appropriate.”[11] Further, Noah Feldman, Harvard Law Professor and former clerk to US Supreme Court Justice David Souter, has argued the law fails constitutionally because it “targets a particular kind of performance based on the message it sends.”[12] This targeting of symbolic meaning, Feldman argues, is an example of viewpoint discrimination, and under the First Amendment, the government is not allowed to prohibit speech based on “what it is trying to say.”[13]

Additionally, opponents of the law argue that not only does it threaten the increasing popularity of drag, but also acts as a “thinly veiled attack” against the entire queer community.[14] Kathy Sinback, executive director of the Tennessee ACLU, warned of the risk that this law poses for any gender non-conforming individuals, given the ambiguous use of “male and female impersonators” rather than “drag queens” in the law’s language.[15] Sinback noted that this ambiguity could “[open] the door to conflating the art and craft of dressing in drag with the everyday embodiment of transgender, nonbinary, or gender-nonconforming people…”[16]

As of February 2023, at least 9 GOP-led state legislatures are considering similar bills.[17] Historically, large movements by marginalized individuals have created change when laws have violated civil rights, and individuals in the queer community have been advocating against oppressive legislation for decades. Although these laws may set a dangerous precedent for some of the most vulnerable members of the queer community, it is clear these laws will be met with a powerful force of both legal and social dissent.

[1] Gaelle Abou Nasr, The Evolution of Drag: A History of Self-Expressionism, Arcadia (Dec. 12, 2021), https://www.byarcadia.org/post/the-evolution-of-drag-a-history-of-self-expressionism (“Drag has a rich cultural history, spanning cross-dressing performances and deliberate parodies of heteronormative gender roles and sexuality.”).

[2] Jeff McMillan, Analysis: Political rhetoric, false claims obscure the history of drag performance, PBS (Oct. 30, 2022), https://www.pbs.org/newshour/politics/political-rhetoric-false-claims-obscure-the-history-of-drag-performance.

[3] The history of drag, and how drag queens got pulled into politics, CBS News (Oct. 29, 2022), https://www.cbsnews.com/minnesota/news/the-history-of-drag-and-how-drag-queens-got-pulled-into-politics/.

[4] Sarah Bobolz, A Brief History of Drag Queen Story Hour, HuffPost (Mar. 25, 2023), https://www.huffpost.com/entry/brief-history-of-drag-queen-story-hour_n_64077824e4b0e0a15960a4a0.

[5] S.B. 3, 113th Gen. Assemb. (Tenn. 2023).

[6] Tenn. Code Ann. § 7-51-1407.

[7] Tenn. Code Ann. § 7-51-1401.

[8] Manuela López Restrepo, The anti-drag bills sweeping the U.S. are straight from history’s playbook, NPR (Mar. 6, 2023), https://www.npr.org/2023/03/06/1161452175/anti-drag-show-bill-tennessee-trans-rights-minor-care-anti-lgbtq-laws.

[9] Melissa Brown, Tennessee passes controversial drag show bill, Yahoo! (Mar. 2, 2023), https://www.yahoo.com/entertainment/tennessee-drag-show-bill-clears-164300446.html.

[10] Id.

[11] Stop Restrictions on Free Speech & Drag Shows, ACLU Tennessee, https://action.aclu.org/send-message/tn-stop-restrictions-on-drag-shows (last visited Mar. 26, 2023).

[12] Noah Feldman, Tennessee’s Ban on Drag Performance Violates Freedom of Speech, Bloomberg (Mar. 16, 2023), https://www.bloomberg.com/opinion/articles/2023-03-16/tennessee-s-ban-on-drag-performance-violates-freedom-of-speech?leadSource=uverify%20wall.

[13] Id.

[14] Jaclyn Diaz, At least 9 GOP-led state legislatures want to restrict or criminalize drag shows, NPR (Feb. 8, 2023), https://www.npr.org/2023/02/08/1151731736/at-least-10-state-legislatures-trying-restrict-criminalize-drag-shows.

[15] Jewly Hight, ‘Where am I going to be free to be who I am?, NPR Music (Mar. 21, 2023), https://www.npr.org/2023/03/21/1164220466/tennessee-anti-drag-law-trans-nonbinary-musicians.

[16] Id.

[17] Diaz, supra note 14.