March 8, 2023

If only people would read the actual bills put forward on some of these controversial issues, we could avoid so much unnecessary drama and misinformation.

If one listened to only Left-oriented media outlets, one would get the impression the State of Tennessee just made it illegal to dress in drag and/or perform a drag show in the state. The media is in a frenzy over Governor Bill Lee signing Senate Bill 3/House Bill 9 into law, which they have been characterizing as a threat to free expression and the rights of LGBT people. Unless they claim some special right for drag queens to perform obscenity in front of minors that nobody else in the state is allowed to do, such characterizations are far from the truth.

Countless headlines across the country have been crafted framing this bill in such a manner, while quoting numerous people that characterize the bill in a similarly mistaken way. For example, several news outlets have quoted Lawrence La Fountain-Stokes, a professor of culture and gender studies at the University of Michigan and author of the book, Translocas: The Politics of Puerto Rican Drag and Trans Performance. “Drag is not a threat to anyone,” he asserts, adding, “It makes no sense to be criminalizing or vilifying drag in 2023.” That would be a powerful quote, except Tennessee did not criminalize drag. One would think as a professor he would do better research into that which he is opposing.

The actual text of the original bill is rather short, displayed below;

The first thing you notice is the act amends Tennessee Code Annotated, Title 7, Chapter 51, Part 14, relative to adult-oriented performances. You can pull that up here.

The next thing you might notice is there is no mention of “drag,” “drag shows,” or “drag performances” in the bill. The bill mentions, “male or female impersonators who provide entertainment that appeals to a prurient interest.” The term “male or female impersonators” can obviously be in reference to people that dress in drag, however the rest of the description (“who provide entertainment that appeals to a prurient interest”) is the operative part.

“Prurient interest” is a recognized legal term related to case law regarding obscenity. Black’s Law Dictionary defines the adjective “prurient” as, “Characterized by or arousing inordinate or unusual sexual desire.” Unless advocates of drag want to concede all drag is inherently sexually obscene, or “prurient,” which they certainly do not wish to do, they must admit there is not an outright attempt to ban or criminalize drag in Tennessee.

The next thing one may notice about the text of the original bill is its inclusion and orientation around a definition – “adult cabaret performance.” This definition is to be inserted into the section of existing law that includes other relevant definitions. The meaning is, “a performance in a location other than an adult cabaret that features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest, or similar entertainers, regardless of whether or not performed for consideration.” The bill then goes on to state, “It is an offense for a person to engage in an adult cabaret performance:
(A) On public property; or
(B) In a location where the adult cabaret performance could be viewed by a person who is not an adult.”

In other words, this bill is simply a clarification of existing law that seeks to keep obscenity away from minors. It is already unlawful to engage in behaviors in Tennessee in front of minors that are defined as “harmful to minors.” This is true no matter who you are or how you dress or identify. Furthermore, it is legal to engage in some of the same behaviors, provided they are in an established cabaret, adult entertainment facility, or are otherwise in areas not accessible to minors. We are a free country and plenty of deviant behavior is tolerated, however we have long established there are limits and a time and place for certain activities.

The bill was amended in the Senate and in the House, slightly altering the definition of “adult cabaret performance” as it relates to “male and female impersonators,” but keeping the qualifier that makes it about behavior, not the impersonation or dress itself. The amendment relates the definition above to the legal term “harmful to minors.”

Current law defines “harmful to minors” as, “that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse when the matter or performance:

(1) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful, or morbid interests of minors;

(2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and

(3) Taken as a whole lacks serious literary, artistic, political, or scientific values for minors.”

The similar amendment text can be viewed below:

At no point in the crafting of this legislation does it appear the lawmakers intended to ban all drag in Tennessee. States governments have long been regarded as having the authority to regulate such matters to a certain extent, in accord with the opinions of their populace. This is especially true regarding activity deemed harmful to minors.

Opponents of the law may retort that such subjective definitions can be abused and drag performers may be targeted for behavior that is deemed sexual and obscene by some, but not by others. This is a danger already possible for everyone. There are some guidelines in current law that may be helpful to get an idea what qualifies as unacceptable and “harmful to minors,” performed by drag queens, or otherwise:

Have people that dress in drag been playing fast and loose with these rules to spark concern, relying on their status as LGBT persons with a certain “lifestyle” as an excuse? Is it not possible for people that dress in drag to engage in activities in public, even hold rallies or shows, without violating these rules? The controversial “drag queen story time” sessions – in which persons dressed in drag read to kids in public – for example – Can this be done in a non-sexual manner that does not violate the law and common decency? If so, then the law is not unfairly targeting or hindering people that dress in drag. If it cannot, then the behavior can rightly be criticized and restricted in accord with the same law that governs the behavior of others.

In a way, drag performers ought to be thankful this law clarifies limits for them and defines when and where they can engage in certain behaviors. If they wish for more tolerance in society, they must recognize and respect the will of the people as expressed via the law equal with everyone else.

But what are the chances we will see such consideration from that community given deep ideological divide in this country and the frantic media treatment news organizations give to these topics?