Freedom of Expression

Ban on Enforcement of Montana Drag Show Restriction Law Kept in Place

pride parade
A person holds a rainbow flag during the 2022 NYC Pride parade in Manhattan, New York, June 26, 2022. (Reuters/Jeenah Moon)

By The Associated Press

HELENA, Mont. (AP) — A federal judge in Montana is continuing to block enforcement of a law that puts restrictions on drag shows and bans drag reading events in public schools and libraries, saying Friday that the law targets free speech and expression and that the text of the law and its legislative history “evince anti-LGBTQ+ animus.”

The preliminary injunction, granted by U.S. District Court Judge Brian Morris, prevents enforcement of the law while a lawsuit filed on July 6 moves through the court process. Morris heard arguments over the injunction on Aug. 28.

In briefs, the state argued “the Legislature determined sexually oriented performances and drag reading events to be indecent and inappropriate for minors,” and potentially harmful.

Protecting minors from divergent gender expression is not the same as protecting minors from obscene speech, attorney Constance Van Kley argued for the plaintiffs during the Aug. 28 hearing.

Montana law already protects minors from exposure to obscenities, the plaintiffs argued.

“The state hasn’t argued meaningfully that the speech targeted by (the new law) — beyond the obscenity already regulated — is potentially harmful to children,” the plaintiffs argued in court filings.

The state is not trying to establish a new obscenity standard in regulating drag performances, Assistant Attorney General Michael Russell said during arguments over the injunction.

“We’re arguing that they’re indecent and improper for minors only,” and that the state has an interest to protect minors from that kind of conduct, he said.

“No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms,” Morris wrote in granting the injunction.

Morris had granted a temporary restraining order against the law in late July, in time to allow Montana Pride to hold its 30th annual celebration in Helena without concerns about violating the law.

The judge said the way the law was written would “disproportionally harm not only drag performers, but any person who falls outside traditional gender and identity norms.” He said the law did not adequately define actions that might be illegal and appears likely to ”encourage arbitrary and discriminatory enforcement.”

The law seeks to ban minors from attending “sexually oriented performances,” and bans such performances in public places where children are present. However, it does not adequately define many of the terms used in the law, causing people to self-censor out of fear of prosecution, attorneys for the plaintiffs argue.

The law also made Montana the first state to specifically ban drag kings and drag queens — which it defined as performers who adopt a flamboyant or parodic male or female persona with glamorous or exaggerated costumes and makeup — from reading books to children in public schools or libraries, even if the performances do not have a sexual element.

The law does not define terms like “flamboyant,” “parodic” or “glamorous,” Morris said in July.

Enforcement can include fines for businesses if minors attend a “sexually oriented performance.” The law also calls for the loss of state licenses for teachers or librarians, and the loss of state funding for schools or libraries, that allow drag reading events to be held. It allows someone who, as a minor, attended a drag performance that violated the law to sue those who promoted or participated in the event at any time over a 10-year period after the performance.

Montana’s law is flawed — like similar laws in Florida and Tennessee that have been blocked by courts — because it regulates speech based on its content and viewpoint, without taking into account its potential literary, artistic, political or scientific value, Morris found in July.

The U.S. Supreme Court in 1972 set guidelines to determine whether something is obscene: Whether the work appeals to the prurient interest — a degrading or excessive interest in sexual matters; whether it depicts or describes sexual conduct in a patently offensive way; and whether the work lacks serious serious literary, artistic, political or scientific value.

Like many Republican-led states, Montana’s conservative lawmakers have passed other laws targeting transgender people. The state’s law banning gender-affirming medical care for minors has been blocked by a state judge. Montana’s Republican-controlled legislature also passed a bill to define sex as only “male” or “female” in state law. That law was challenged this week, with arguments that it blocks legal recognition and protections to transgender, nonbinary and intersex residents.

“It is absolutely impermissible for the government to deny benefits to a group of people on the basis of their straightforward hostility to them,” said Van Kley. In the “male” or “female” sex case, “there is pretty substantial evidence that the intent was to target transgender people,” Van Kley added.