Arkansas lawmakers are rushing a bill to ban most drag — and create fear for LGBTQ people
The bill, which could also be read to restrict transgender people, passed the state Senate on Tuesday and is already under consideration in the state House.
Before I start, in addition to the ACLU’s legislative tracker, which I highlighted on Monday, I also meant to point everyone to the extensive legislative tracker organized by Alejandra Caraballo, Erin Reed, and Allison Chapman.
Apologies for not including it on Monday. I hope that people check it out now and throughout the legislative sessions.
To that end, in addition to the anti-transgender Utah legislation I discussed on Monday, the Arkansas legislature appears to be rushing forward with an anti-drag bill that could be read to include trans people within its restrictions and raises stark constitutional questions.
On Tuesday, the bill — S.B. 43 — passed the Senate overwhelmingly on a 29-6 vote.
Before the day was out, the bill had already been read twice in the House and sent to committee.
So, what does the bill do?
The main objective of the bill is laid out most clearly in the first section.
A “drag performance” would, under the bill, become an “adult-oriented business” and would then face all of the limitations state law places on such businesses.
An adult-oriented business shall not be located within one thousand feet (1,000') of a child care facility, park, place of worship, playground, public library, recreational area or facility, residence, school, or walking trail.
And, violating the limits are a crime:
(1) A violation of § 14-1-303 is a Class A misdemeanor.
(2) Each day of violation constitutes a separate offense.
Yes, it’s true that all of the current adult-oriented businesses are actual businesses, and a drag performance is an activity, but that is, nonetheless, what this guy chose to do with this bill.
Republican Sen. Gary Stubblefield, who has at times been too conservative for even other Arkansas conservatives, simply turned an activity into a business — and almost all of his Senate colleagues on Tuesday said that was fine with them.
Any drag performance, under the bill, would become an adult-oriented business — regardless of where it was taking place. But, because the performance would be transformed into a covered business, it would have to meet the state’s limitations on such businesses.
Now, because of that grammatical confusion, a definition section was added in to define “drag performance.”
First, depending on how one interprets “are meant to exaggerate the gender identity of the performer’s opposite sex” — meaning, depending on who is interpreting it — the legislation could be read to include transgender people under its coverage as people who present “a gender identity that is different from the performer’s gender assigned at birth.” As Erin Reed noted in her coverage of the bill, several lawmakers speaking in support of S.B. 43 clearly believed that trans people would be covered by the bill.
Then, there are two other requirements to pull an activity under the bill’s coverage.
The person or people in question must be performing before an audience of at least two (2) persons. (Again, if trans people are read to be included under the bill, that would mean any trans event with performances could be subject to these restrictions.)
Finally, the performance must be “intended to appeal to the prurient interest.” It’s this last part that gets particularly confusing. The mention of “prurient interest” seems to be an attempt by the sponsor to connect drag performances to obscenity, which is not protected speech under the First Amendment. Under the U.S. Supreme Court’s Miller test, one of the standards for establishing that something is obscene is a finding that the work in question, “taken as a whole, appeal[s] to the prurient interest in sex.”1
As Reed noted, Stubblefield appeared to be particularly upset about the possibility of a drag queen story hour, saying, “I can’t think of anything good that can come from taking children and putting them in front of a bunch of grown men who are dressed like women.” A drag queen story hour, of course, would not appeal to “the prurient interest in sex.” Unless, of course, you consider any and all drag under any and all circumstances to do so. Which, he very well might — but courts shouldn’t.
Of course, this complication is part of what laws like these do — and aim to do.
The final part of the bill adds new restrictions on where adult-oriented businesses can be located. More complication.
As I noted above, Arkansas already limits where adult-oriented businesses can be located. This goes even further, barring adult-oriented businesses from being located on public property — no drag shows at public universities, I guess, for just one example — and where minors can see what the business is “offering to the public” that makes it an adult-oriented business. As to what that means, the best that I can figure is that it is purporting to ban adult-oriented businesses from any outward display of what they do that makes them an “adult-oriented business.” So, by my read of this provision, it would mean no “DRAG SHOW / SATURDAY NIGHT” sign in the window, for example. (Feel free to let me know how else you’re reading that provision.)
This confusion and complication is all intentional — in two very important, dangerous ways.
First, bills like this, which can be read very broadly, can cause great destruction for businesses, nonprofit organizations, and individuals — even if they’re later interpreted by courts in a more narrow way or struck down. A broad interpretation of this bill would, for example, ban drag shows at any queer space — a gay bar, a community center, anywhere — that is located within 1,000 feet of “a child care facility, park, place of worship, playground, public library, recreational area or facility, residence, school, or walking trail.” As Reed noted was said on the floor Tuesday, it likely could be read to ban most pride parades as well. It could also, as discussed, upend trans people’s lives, too.
It would create fear — and already has, just through its consideration — in the midst of all of this as well.
Second, and relatedly, laws like this encourage the fear-mongers. Let’s say that, as I see it, a drag queen story hour isn’t covered by this law, to give just one example. Nonetheless, if this bill becomes law, those who would protest or disrupt such an event would certainly be emboldened by the bill’s passage into law — particularly if they heard Stubblefield’s speech on Tuesday or one like it in the coming days.
So, what does this all mean?
It’s a bad bill that should not become law.
Arkansas’s S.B. 43 uses language susceptible to multiple interpretations that could be used in draconian ways to target LGBTQ people across the state by censoring their freedom of expression (or, for trans people, freedom to be themselves). And, even if the bill were to be narrowed or found to be unconstitutional at some point after becoming law, passage would nonetheless accomplish a significant part of its goal — to demonize an already marginalized community.
Law Dork with Chris Geidner is independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.
It’s not clear to me this would even come up in this way in a challenge to this legislation if it becomes law, but it is almost certainly why the drafter is using that language, so I included it. If the bill proceeds, however, there certainly will be time for further discussion about the standards that would guide those challenges.