Do these images appeal to your prurient interest? By that we mean, does Uncle Miltie in a coconut halter or Flip Wilson dressed as his character Geraldine inflame your shameful or morbid interest in nudity, sex or excretion? Do the photos lack all serious literary, artistic, political or scientific value? Does the appearance of two giants of American comedy in dresses violate the standards of decency in your community?
Are the photos obscene?
If you answered yes to all of the above, then congratulations. You have what it takes to be a conservative, drag-hatin’ member of the Texas Legislature, provided you’re willing to ignore the part of the legislators’ oath of office about preserving, protecting and defending the Constitution.
Right now, four bills containing similar language concerning drag performances are before the Legislature. Among a host of bills aimed at erasing gay and trans people from public life, these four would declare that any club, restaurant, venue or other commercial enterprise that hosts live drag performances seen by at least two people is a sexually oriented business, subject to the added fees and a host of other restrictions that apply to strip clubs, adult bookstores and the like. The bills would add this definition to the sort of entertainment that makes a business sexually oriented: “A ‘Drag performance’ means 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 before an audience for entertainment.”
That’s it. A man in a dress or a woman dressed as a man reading Bible verses to an audience is speech that could arguably fall under the state’s SOB law.
That raises all sorts of absurd questions. Would a bookstore that hosts G-rated drag story times for children be labeled a sexually oriented business? How about a movie theater that has a special screening of The Rocky Horror Picture show hosted by someone impersonating the undeniably sexy and trans Dr. Frank-N-Furter? Will agents from the Texas Comptroller’s Office show up demanding the fee of $5 per audience member that SOBs must pay?
The bigger question: How could such a law be constitutional in a country that still has a First Amendment? We put that question to a couple of lawyers, one with the free-speech advocacy group the Freedom Forum and another with the Texas office of the American Civil Liberties Union. The short answer, according to them: It can’t.
“This is just not content-based,” said Kevin Goldberg, a First Amendment specialist with the Freedom Forum. “It seems likely to be viewpoint-based, which is even worse than being content-based in terms of violating the First Amendment. What it does is it takes drag shows, and only drag shows, and makes them lewd, considers them lewd for the purposes of this law.”
Public lewdness, obscenity’s cousin, is prohibited under Texas law, but its definition involves partial or full nudity and overt sexual acts — in other words, how much clothing is removed, not which clothes the performers are wearing.
Courts trying to suss out what constitutes obscenity — the kind of speech that can be regulated — apply the Supreme Court’s “Miller test,” Goldberg said. It asks whether the average person applying contemporary community standards would find that the work, when taken as a whole, appeals to the prurient interest; depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Laws that restrict speech rights must be narrowly tailored to meet a compelling government interest.“Any time there is a law being proposed or even rhetoric being spewed against our community … it sends a message to them that these people aren’t valued,” Rio said.
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“If Dallas or any other government entity wanted to ban drag, just outright ban drag, it could not do it, because the only way you could ... regulate such speech is if it is actually obscene under what we call the Miller test,” Goldberg said. “But this doesn’t even come close. Very little is considered obscene under the Miller test.”
Brian Klosterboer, a staff attorney with the Texas branch of the American Civil Liberties Union, said the bills are “like a model in a law school class on how to violate the First Amendment.”
“There’s nothing inherently sexual or obscene about drag,” Klosterboer said. “… There’s drag that’s completely appropriate for all ages. … Like any form of artistic expression, it’s protected by the First Amendment. … You can’t ban the entire medium.”
The good news, for those who cherish free speech, is that even if any of the bills do pass, they’re unlikely to withstand a court challenge. And Klosterboer holds out hope that they might not even pass. “I would hope they’re so egregiously unconstitutional the lawmakers won’t pass them into law,” he said.
Maybe they won’t, but that doesn’t mean the bills' existence isn’t harmful. Forget about the questions concerning the constitution and free speech (the bills' authors have). These bills are about fomenting hatred against LGBTQ people, and that’s a booming field in Texas these days. In December, the Gay & Lesbian Alliance Against Defamation issued a report that found 141 instances of threats, protests and violent action against drag events nationwide. Texas led the states with 20 “anti-drag attacks.” No. 2 Virginia had 10.
“It’s a really scary time right now for LGBTQIA people in Texas,” Klosterboer said. “...There’s no limit to how far they’ll go to [erase] LGBTQIA people from public life.”
Dallas drag performer Daphne Rio has seen the chilling effect that conservative lawmakers’ animus toward drag shows and the gay community in general is having right now.
“Any time there is a law being proposed or even rhetoric being spewed against our community … it sends a message to them that these people aren’t valued,” Rio said.
Rio has friends who have had to change phone numbers and delete social media accounts because of threats of violence and harassment from anti-drag protesters. The opponents routinely and falsely accuse drag artists of “grooming” children, applying language used to describe pedophiles to performers who simply perform dressed as women. Certainly, there are adult drag shows that are risqué, but kids can see more flesh and hear raunchier words at concerts by mainstream performers. Drag performers and the venues that host them know their audiences and know better than to cross lines when children are in the crowd, Rio said, and the venues take care to let audience members know if a show contains adult humor or content.
“We’re all adults. I don’t know of anyone in my community that I perform with who would do something lewd around children,” Rio said. “We would never want to be lewd or disgusting around children.”
At all-ages shows, Rio said, venue staff will come to the dressing room to give performers a heads-up if children are in the audience.
Regardless of reality, anti-drag protests, with their threats of violence and vicious “grooming” rhetoric, continue to have a chilling effect. Last week, On Rotation Brewery and Kitchen on Lemmon Avenue canceled a drag show after receiving threats and fake, negative Yelp reviews from opponents. Also last week, the Foundation for Individual Rights and Expression, a free-speech advocacy group, sued West Texas A&M University President Walter Wendler over his decision to cancel a charity drag show intended to raise money for an organization that seeks to prevent suicide among LGBTQ+ youth. Wendler acknowledged that “the law of the land appears to require” that the show be allowed to go on, but he canceled it anyway.
And that’s the truly awful part about this sham legislation and Wendler’s disregard for the law. Texas lawmakers and a university president, who should know better, are making a choice, picking mob rule above the rule of law.
Whatever your opinions of drag shows — and last we checked, no Texan is required to attend one — you should find that chilling.
