(Update: On June 3, U.S. District Judge Thomas Parker said Shelby County can't enforce Tennessee's anti-drag law, saying it's unconstitutional.)
Tennessee’s law banning drag performances was blocked by a federal court in April after it was challenged by the Memphis drag theater group Friends of George’s. Judge Thomas L. Parker of the Western District of Tennessee placed a temporary restraining orderthat extended through May 26.
In his opinion, Parker sided with Memphis-based Friend of George’s, arguing the law is too vague and clashes with the first amendment of the U.S. Constitution.
“The law also needs to be specific enough to give law enforcement officers precise kinds of limitations so that they know exactly how to enforce this law. And the statute simply doesn't do that,” the judge argued during a hearing.
Civil rights attorney Melissa Stewart concurs.
“If a law is so vague that your average citizen can’t tell what is and is not prohibited, then it’s going to have a chilling effect on a lot of lawful expression,” said Stewart, who is one of the lawyers representing Friends of George’s.
The law, sponsored by Tennessee House Rep. Chris Todd, classifies male and female impersonators as adult cabaret performers who provide entertainment that appeals to “prurient” interest. It then bans adult cabaret performances on public property or where a minor is present. The basis of the law’s language has left it open to interpretation.
“That makes it pretty transparent that this law was specifically designed and passed to target gender nonconforming queer people,” Stewart said.
Rep. Todd filed the legislation after fighting a public drag show in Jackson last year. At the time, Todd labeled the drag show as “child abuse” despite acknowledging he hadn’t researched the content of the show.
During a hearing, Judge Parker asked attorneys representing the state how this law differs from the state’s current obscenity law, but Stewart said state representatives could not provide examples. Their argument, Stewart said, is that drag performances could create a higher likelihood of sexual harm to a child under the secondary effects doctrine.
“We don't have a single instance of drag performers doing that, or drag shows leading to that. I mean, I don't think it's any question but, you know, children shouldn't be exposed to, you know, hardcore pornography or something,” she said in an interview. “But that's not what drag is.”
Pride event organizers say that age-appropriate public drag shows are not new, and have not required restrictions in the past.
“I have four children, so we’re always cautious of what’s going on in front of them as well,” John Camp points out. He is executive director of Knox Pride Community and resource center. Knox Pride’s annual pride festival usually draws about 75,000 people.
In response to the legislation, Knox Pride threatened to cancel its pride festival to garner attention and support. Camp also said that many members in the LGBTQ community are worried the law could target transgender individuals.
“I think the biggest fear for us here at the center is our trans brothers’ and sisters’ safety,” he said.
As it stands, the law carries severe punishments.
The first violation of this law is a Class A misdemeanor, which can carry a maximum jail sentence of nearly a year. A second or subsequent violation of the law is a Class E felony, which carries a prison sentence of up to six years.
In the closing arguments, the state requested that if the law should be found unconstitutional, it should apply only to Shelby County, but not the rest of the state.
“It was a bizarre thing for the state to ask for,” Stewart said. “I'd never heard anything like that before.”
A final ruling from the federal judge could come by June 6.
