The Right’s War on Drag Is Flagrantly Unconstitutional

Jennyvieve Barquero-Hughes, 4, in black, gets her photo taken with Drag Queens Kelly K, left, Scalene OnixXx and Athena Monet Kills at the Drag Queen story hour at the Cellar Door Bookstore on Saturday, April 29, 2023 in Riverside, Calif. (Irfan Khan / Los Angeles Times via Getty Images)

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I was driving my family home after seeing the live-action Little Mermaid, and I offhandedly said to my wife, "The only thing that could have made that movie more inclusive was if Ursula was played by a drag queen." It was a rookie parenting mistake, because I was immediately peppered with "what is a drag queen?" questions from my 10- and 7-year-old boys, only I hadn't thought through how to explain the concept to children who think it's a given that people will dress how they want.

I started with a good, technical answer: "When a person of one sex dresses in clothes traditionally worn by members of the opposite sex." But that just made my 10-year-old ask bemusedly, "So like when Mommy wears pants?" I pivoted to the idea that the clothes had to be worn as a "costume" and "makeup" as part of a "performance." That prompted the 7-year-old to get involved: "So am I a drag queen because I like to paint my nails?" (The kid has been on a nail-painting kick. Nobody has escaped… not even me). It was a long drive home as my wife and I tried to explain why our world responds differently to two people wearing the same basic outfit, because of their sex. It's an idiotic distinction, especially when you try to explain it to a child.

Defining "drag" to the satisfaction of children is difficult. Defining drag so that you can ban people from performing in it is, or should be, constitutionally impossible. That hasn't stopped bigoted Republican legislators and governors from trying. Happily, they’re discovering that translating their irrational fear of drag shows into legal prohibitions tends to run afoul of constitutional law and common sense.

Last week, a federal judge blocked Tennessee's first-of-its-kind ban on drag shows. The Tennessee legislature (which did nothing to stem the sale of guns after a school shooting in Nashville, other than expel two legislators who protested the endless violence) attempted to criminalize "adult cabaret entertainment" that is "harmful to minors" in "any location" where the show could be seen by a minor. It then defined "adult cabaret entertainment" as any show featuring "male or female impersonators" (as well as "topless dancers, go-go dancers, exotic dancers, strippers…or similar entertainers").

It's a definition of drag shows that wouldn't last a car ride with my children. Male or female impersonators could be anyone from a man cosplaying as Mulan disguised as a man to the stars of an all-girl Catholic high school production of Hamlet. I can do an awesome karaoke rendition of No Doubt's "Just A Girl," but arguably my performance would also be banned in Tennessee.

It's also a definition that didn't survive its first contact with the First Amendment. On June 2, US District Judge Thomas Parker—a man appointed by Donald Trump, by the way—ruled that the Tennessee law was an unconstitutional restriction on free speech. It's easy to see why. Judge Parker brings up the example of an Elvis impersonator (this is Tennessee, after all), and notes that a man who dresses up as Elvis and makes indecent but not "obscene" gestures would be allowed to, but a woman who put on the very same show would be jailed.

People get to dress and look how they want to look in public. They can also sing and dance while dressing how they want. The constitutional principle here is neither new, confusing, nor controversial. Unfortunately, instead of just accepting the fundamental right to freedom of expression, a different set of bigots, this time in the Texas state legislature, seems bound and determined to find some other, ostensibly constitutional way to ban wearing a dress while sporting an Adam's apple.

Texas legislators, most legal commentators, and really anybody with even a passing understanding of how the First Amendment works, could have anticipated that Tennessee's ban would be struck down. Texas lawmakers hope to avoid Tennessee's fate, and last week, the Texas House passed a sweeping so-called anti-obscenity bill, SB-12, aimed at accomplishing the same goal of banning drag shows, without the constitutional issues. To do this, Texas legislators took out the language of the bill that explicitly targeted drag performers or "cross-dressing." That may seem counterintuitive, to attack drag performers by taking them out of the bill, but, as I’ve explained, prohibiting drag outright flies right into the face of the First Amendment.

Instead, Texas opted for an entirely different form of unconstitutional overreach. The bill purports to ban any "sexually oriented" performances that appeal to a "prurient interest in sex" where minors might be present. Then, it defines sexually oriented as "sexual gesticulations using accessories or prosthetics that exaggerate male or female characteristics." The bill fines business owners $10,000 if they put on such a show, and it would charge performers with a class A misdemeanor, which is punishable by a $4,000 fine and up to a year in jail.

Congratulations, Texas lawmakers. You just banned… the Dallas Cowboy cheerleaders. Think about it: At halftime of the next football game—an event where minors might be present—a troupe of women will perform a show that appeals to a prurient interest in sex by using sexual gesticulations. Some of them will certainly (certainly) be sporting "accessories or prosthetics" that exaggerate their characteristically female profiles.

We shouldn't even have to wait for a court to strike down this mess. We should only have to wait until Cowboys owner Jerry Jones learns that he is to be fined $10,000 every time his team scores a touchdown and this sideline entertainment will be hauled off to jail. At that point, I’m guessing he’ll call up Texas Governor Greg Abbott and order him not to sign this bill into law.

In case it wasn't obvious, these anti-drag bills are stupid as a matter of law. Yes, they’re bigoted and puritanical and dangerous, and a crude attempt to engage in queer-bashing under the guise of legislation. But they’re also fundamentally really dumb; they fail at the most basic technical level as laws that people can understand, abide by, and enforce.

These bigoted legislatures can't do what they want to do because what they want to do is facially unconstitutional. Trying to write a law that somehow tricks people into violating the First Amendment all but ensures the writing of a bad law.

As I learned from talking to my kids in the car, you can't ban "drag queens" without limiting the freedom not only of drag queens but also of everybody else. Because there's nothing about drag that's fundamentally different from putting on the clothes that happen to be in your closet and then going out in public, other than how certain tight-ass people react to it. On the ride home, my wife ended up Googling pictures of Rupaul to show our kids, and the older one said, "Oh, she looks good. Daddy, could you look like that if you wanted to?" Yes, son. With a gym membership and a little more self-confidence, yes, I could. Because I live in a free goddamn country.

Elie MystalTwitterElie Mystal is The Nation's justice correspondent and an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy's Guide to the Constitution. He can be followed @ElieNYC.

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