Tennessee’s Restrictive New Drag Law Isn’t Even in Effect Yet. It’s Already Elicited a Lawsuit

Tennessee’s restrictive new drag law goes into effect on Saturday, April 1, and there’s already a lawsuit in response. The Memphis-based nonprofit theater group Friends of George’s is suing the state of Tennessee, alleging violations of the First Amendment as a result of the new law.

The lawsuit, obtained by Rolling Stone, lays out a brief history of drag as performance and art, right up to its mainstream popularity in the present day. In doing so, it makes a number of pertinent points about misconceptions around drag and the double standards that surround it.

“Modern drag performances typically do not contain nudity,” the suit reads. “More often than not, drag performers wear more clothing than one would expect to see at a public beach, and many drag shows are intended to be appropriate for all ages.”

The suit also references the 2022 Jackson, Tennessee, Pride event that set the whole legislative process in motion. Jackson’s Pride was forced to change from an all-ages, outdoor event to an age-restricted, indoor one because it featured drag, following complaints from locals. State Representative Chris Todd, whose district includes Jackson, sought to have drag banned from the event outright and was responsible for introducing HB 0009 to the Tennessee legislature in hopes of banning what they termed “adult cabaret” in front of children.

The language of the law, the plaintiffs allege, does not hold up to scrutiny about speech being prohibited and to whom. Two different readings of what constitutes “adult cabaret” are possible, and, the suit alleges, both may be unconstitutional. In the first case, the language could be read as it including conduct that is “harmful to minors” per the agreed-upon amendment as well as anything featuring “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”

“Under this reading of the law, a drag queen wearing a mini skirt and a cropped top and dancing in front of children violates this statute, but a Tennessee Titans cheerleader wearing precisely the same outfit doing precisely the same routine does not, because she is not a ‘female impersonator,’” the suit notes.

In the second interpretation of the phrase, “adult cabaret” could mean that conduct that is “harmful” must include one of the performers listed above.

“If the prohibited conduct must include one of the defined performers, then a woman in a dress who publicly performs material ‘harmful to minors’ cannot be charged under this statute, but a man in a dress engaged in the exact same conduct could be,” the suit says. “Once again, the restricted speech is defined in significant part by the speaker, and the message that speaker conveys.”

Friends of George’s, which stages “drag-centric performances, comedy sketches, and plays” open to all ages, was created in part because of a need for activities outside bars and nightclubs. The group has a new production coming in mid-April — after the law goes into effect on Saturday — and is unclear on that show’s legality.

“Given that Plaintiff cannot identify what conduct is covered by this law or what locations are included in the prohibition, they are reasonably concerned that the 6 performances of their all-ages drag show could subject them to felony charges,” the suit notes.

And beyond that, of course, the law is likely to suppress expression all over Tennessee via fear, because it even leaves open the possibility that someone’s private home will not be a safe place for a performance if there’s a possibility a child might see it. The plaintiffs have requested a temporary restraining order and a preliminary injunction to keep the law from going into effect, and also request a jury trial to take on the matter.

“Even if the government could identify a compelling interest, this law is far from narrowly tailored,” it says. “It is broad enough to encompass even the most innocent drag performances, to reach into the private homes of Tennessee citizens, and to determine on behalf of parents what is and is not appropriate entertainment for their children.”