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Of all the “culture war” targets of recent years—from the teaching of critical race theory to discussions of gender identity—drag shows that could be watched by minors would seem a very small battle in a larger war. But legislatures in 13 states (Arizona, Arkansas, Idaho, Kansas, Kentucky, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and West Virginia) have found the subject compelling enough to introduce and, in many instances, pass statutes that criminalise shows in which men impersonate women and women impersonate men in public venues where minors may be present. Penalties can include fines and possible jail time.

A drag show is defined in the Texas statute, for example, as a “sexually oriented performance” from which an “individual younger than 18 years of age” would be prohibited, and organisations that host drag shows could face fines of $10,000 for every minor attending such a show. A similar law enacted earlier this year in Florida defined drag as any show in front of a live audience that depicts lewd conduct or the lewd exposure of prosthetic or imitation genitals or breasts. Businesses hosting drag shows in Florida could face fines of $5,000 or $10,000 and have their liquor licences revoked if minors are admitted.

Of concern to the visual and performing arts communities is whether or not these laws, and the more than 500 anti-LGBTQ bills that have been introduced into state legislatures so far this year, represent a potential criminalisation of artistic speech, particularly when the content of an exhibition or performance involves questions of sexual orientation and gender identity. Marjorie Heins, the former director of the American Civil Liberties Union’s arts censorship project and author of Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth, worries they might.

“The law just passed in Texas began as a ban on drag performances that a minor might see and evolved into a ban on anything ‘sexually oriented’ a minor might see,” Heins says. “That’s pretty vague, covers a lot of ground and is patently unconstitutional, but that doesn’t stop legislatures from enacting such laws, and the chilling effect is likely to be significant.”

Aaron Terr, the director of public advocacy at the Philadelphia-based Foundation for Individual Rights and Expression, says the language in many of the state bills is quite broad and “can easily reach performance art, plays, comedy sketches and other art or entertainment featuring gender non-conforming dress or behaviour”. Films such as Mrs. Doubtfire or classical stagings of Shakespeare plays where men perform as both male and female characters could be identified as violating these laws, he warns. The US constitution’s First Amendment right to free speech should not be violated just “because some people find [a particular work of art] indecent or find no value in it”, he says.

One such statute was struck down in early June by a federal judge who found Tennessee’s law limiting drag performances to be “unconstitutionally vague and substantially overbroad”. Judge Thomas Parker, who was appointed by former president Donald Trump, ruled the law could “criminalise—or at minimum chill—the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County”. He added, “Such speech is protected by the First Amendment.”

Lucian Pera, a lawyer in Memphis, Tennessee, praised Judge Parker’s ruling, adding that the state’s anti-drag law, like the recently passed measure banning gender-affirming care for minors, was “directed at gay, lesbian and trans people, motivated by the legislature’s supermajority’s views about them”.

Definition a thorny issue

Judicial rulings and varying levels of support do not necessarily stop legislators from reintroducing these types of bills or trying to modify statutes that have been found unconstitutional so that they can survive judicial scrutiny. The subject of obscenity and what types of material should be withheld from minors has been a long-running debate in US politics. The Supreme Court struggled in the 1960s and 70s to come up with a definition for obscenity that will put people on notice of what is constitutionally protected and what can be prohibited. The current definition (since the 1973 Supreme Court decision in Miller v. California) has three parts: whether the average person, applying “contemporary community standards”, would find the work appeals on the whole to “prurient interests”; depicts or describes specific sexual conduct in a patently offensive way; and lacks “serious literary, artistic, political or scientific value”.

Heins says this definition is “incredibly vague and subjective. Nevertheless, that’s what we’re stuck with.” As for what might be deemed “harmful to minors”, she says, the Supreme Court has not had an easier time arriving at a clear standard.

There are no studies or evidence showing that drag shows cause harm to minors. “Halloween doesn’t inspire children to become the thing they dress up as,” says Jordan Budd, executive director of Colage (Children Of Lesbians And Gays Everywhere), a Rhode Island-based organisation for people with one or more LGBTQ parent, guardian or caregiver that has included drag performances at events. Drag shows represent “an easy target”, Budd says, “since most people aren’t familiar or comfortable with drag shows”, and they have become yet another zone of contention for those battling LGBTQ acceptance.

Efforts to restrict the audience for drag shows have been seen by some in the art community as an attack on many of its members. Steffan Schlarb, owner of Schlomer Haus Gallery in San Francisco’s Castro District, which specialises in exhibiting the work of queer artists, identified anti-drag show legislation as “a dog whistle. Drag is used as an entrée into the entire queer experience. The larger view is that queer experience needs to be regulated, because it is a threat to society.” Protecting minors, he says, is simply the pretext for quashing an entire segment of the population.

Erica Dubno, a lawyer in New York and member of the First Amendment Lawyers Association, says: “There is nothing inherently sexual or obscene about drag. Nevertheless, it frequently has been linked to adult entertainment and erotic expression.” She says the town of Hempstead on Long Island has included “male or female impersonators” in its definition of adult entertainment cabarets for decades. “That definition links impersonators in the same sentence as topless dancers, strippers and exotic dancers.”

Kevin Sabo, who often plays with queer identities in his art, fears the laws could be expanded to censor his work

Apart from how lawyers and LGBTQ activists view the new crop of anti-drag show laws and other efforts to protect young people from supposed harm, artists increasingly feel under siege. “The targeting of Black history in schools is unfortunately just the tip of the iceberg we’re experiencing. It’s extremely frightening,” says Kendrick Daye, a multimedia artist based in New York who describes himself as “a Black queer person”. “People lump the anti-drag and anti-trans laws into one thing and think they are exempt. But history has shown us that this is a way to get all marginalised people under surveillance and control.”

Kevin Sabo, a painter based in Richmond, Virginia, and whose work frequently depicts “queer bodies and drag queens” is also alarmed, he says. “The laws are so vague that they can’t even define drag, so everything is open to interpretation. I don’t know how it might happen, but I’m very concerned that these anti-drag laws will be expanded to censor this kind of expression.”

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