What a drag — Montana outlaws ‘glamorous’ attire in public schools and libraries

Montana has enacted an unconstitutional law that prohibits any school or library that receives state funding from hosting “drag story hour.” 

As we have written, lawmakers in several states have introduced or passed legislation intended to regulate drag performances. We warned that bills that vaguely define “drag performances” or “drag shows” are often “so broad that [they sweep] in performances of Shakespeare, comedy sketches, and other entertainment simply for depicting gender non-conforming characters or characters who are played by actors of the opposite sex.” 

But instead of narrow definitions, the Montana legislature chose a different, even more constitutionally fraught path, regulating performers of both sexes even if they are in traditionally gender-conforming attire. 

In short, what this bill now regulates is anyone in costume or fancifully dressed reading to children.

This law no doubt will face constitutional challenge in short order. And the court reviewing it should strike it down. 

The legislation defines “Drag story hour” as an “event hosted by a drag queen or drag king who reads children’s books and engages in other learning activities with minor children present.” 

As to those categories of readers who must be banned from public libraries: 

(1) “Drag king” means a male or female performer who adopts a flamboyant or parodic male persona with glamorous or exaggerated costumes and makeup. 

(2) “Drag queen” means a male or female performer who adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.

While there are different interpretations of what “drag” encompasses, the definition in Montana’s statute goes beyond the common understanding of drag, managing to somehow reach women dressing as women and men dressing as men. 

To be clear, Montana’s definitions capture a “female performer” who adopts either a “flamboyant . . . male” or “feminine persona” using “glamorous or exaggerated costumes and makeup.” 

In other words, a woman may be prohibited from reading to children if she dresses too feminine or if she dresses too masculine.

Montana’s statute is so vague and broad it could even prohibit a woman dressed as Snow White from reading “Snow White and the Seven Dwarves,” or an actor dressed as a flamboyant pirate from reading Robert Louis Stevenson’s classic,“Treasure Island,” to children in Montana libraries.

Americans are a diverse group who may adopt “flamboyant” personas and dress in “glamorous or exaggerated costumes.” Perhaps one of the most noteworthy is singer-songwriter Dolly Parton, known for her outsized personality and glamorous dresses and costumes – and as an advocate for literacy whose nonprofit, Dolly Parton’s Imagination Library, has donated more than 200 million books to children throughout the world. She also, from time to time, reads books to young children in promotion of these efforts. Here’s Dolly reading to kids in the Library of Congress’ Great Hall, for example. 

Under this law, Dolly could be prohibited from reading to children in a Montana library. Maybe if she dressed in drab olive green, she could skirt by this law.

Drag performances, absent elements that bring them within unprotected or regulable categories of speech, are fully protected by the First Amendment.

Vague and overbroad laws like Montana’s drag statute give unfettered power to government officials to enforce laws in inconsistent ways, favoring one viewpoint or certain types of expression over others. The statute’s definitions of “drag queen” and “drag king” could be used against nearly anyone who reads to children in a library in anything but the most nondescript garb. The law gives Montanans no clear guidance of what is permissible and what is unlawful.

The bill’s history makes its final enactment even more frustrating. The original legislation did not mention “drag king,” “drag queen,” or “drag story hour.” The bill still defined “drag performance” as “a performance in which a performer exhibits a gender identity that is different than the performer’s gender assigned at birth using clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs for entertainment to appeal to a prurient interest.” To be clear, this original language still has viewpoint-discrimination problems because a performance in which a performer exhibits gender-conforming “clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs for entertainment to appeal to a prurient interest” would not have faced regulation or restriction. 

Whitworth cancels Pride Club’s Queer Church event a week after rejecting TPUSA event

News

A week after Whitworth’s student government rejected a campus TPUSA chapter’s request to hold an event, the university has reportedly canceled the Pride Club’s Queer Church event.

Read More

In other words, the original bill was bad. But the version enacted into law is even worse. The legislative process saw the addition of the “drag king,” “drag queen,” and “drag story hour” language, followed by removal on the Senate floor. Republican Senator Chris Friedel, who authored the amendment removing all of the bill’s references to drag, made the reason clear: “I can tell you right now, if that bill goes as [it currently is written], even the most conservative judge will strike it down for unconstitutionality.” 

He understood the crucial point: Drag performances, absent elements that bring them within unprotected or regulable categories of speech, are fully protected by the First Amendment. 

Unfortunately, the legislature chose not to heed Sen. Friedel’s warning. The conference committee that reconciled the differences in the legislation re-added the “drag king,” “drag queen,” and “drag story hour” language.

This law no doubt will face constitutional challenge in short order. And the court reviewing it should strike it down. 

FIRE urges lawmakers in other states to avoid Montana’s mistakes. Crafting vague and overbroad statutes will lead only to defeat in court and loss of taxpayer funds in damages and attorneys’ fees.