The Consequences of Unclear Drag Show Restrictions Based on Prurient Interest

By FOCUS, A Leonine Business

The 2023 legislative session has been plagued by a barrage of anti-LGBTQ and anti-trans legislation introduced by republicans, who have recently focused their attention on the outright banning of drag performances. Nearly 50 bills have been introduced this year by Republican lawmakers attacking drag performances in Arizona, Arkansas, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and West Virginia.

Many of the bills require businesses that host drag shows to register as adult entertainment venues or sexually oriented businesses and would inadvertently prohibit and criminalize transgender, non-gender conforming and “gender bending” individuals from performing due to their broad definitions. The concept of “prurient interest,” an excessive preoccupation with sex, appears in several of these bills which by definition requires personal judgement. This lack of clarity exposes Republican’s struggle to define both “drag” and what constitutes as “obscene,” and as a result many of these bills will do much more than protect children from “obscene, sexualized entertainment,” as promised.

Tennessee became the first state to officially ban drag performances when Republican Gov. Bill Lee signed SB 3 on March 3. It will now be an offense for a person to engage in an adult cabaret performance on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult. The law’s definition of adult cabaret performance includes “male or female impersonators who provide entertainment that appeals to a prurient interest.” A first-time offender will be charged with a misdemeanor. A second or subsequent violation would be a Class E felony. Governor Lee has already received overwhelming backlash and was even condemned by the White House for signing this piece of legislation. The law is set to take effect July 1, 2023.

Texas has filed the nation’s first drag bounty hunting bill. HB 4378 would reward bounty hunters with $5,000 for reporting a person who performs while “exhibiting a gender that is different from gender recorded at birth” and “violates the community standards of decency.” Another Texas bill, HB 3240, would threaten to cancel or suspend a liquor permit if the permittee facilitated a sexual performance in the presence of children. The bill defines such performances as ones where a performer, “danced in a lewd manner…with the intent of appealing to the prurient interest of sex and had no serious, literary, artistic, political or scientific value or exhibited sexual gesticulations using accessories or prosthetics that exaggerate male or female primary or secondary sexual characteristics.”

The major problem with the outpouring of these bills is the larger affect they will have on the LGBTQ community and more specifically the trans community. Not only does this type of legislation give law enforcement a legal right to discriminate against trans people, but continues sending a message that drag performers are regularly performing in obscene ways in front of children, reports FiveThirtyEight, a lie that echoes discriminatory attacks on the LGBTQ community of the past.

Since the beginning of March, five bills banning or restricting drag performances were introduced in Missouri, South Carolina and Texas, a sign that drag show ban legislation is unlikely to slow down anytime soon. FOCUS will continue to monitor the language of drag show bans and their trajectory across the country this session.