Dragging Out the Inevitable: Arizona’s Proposed Drag Laws and their Constitutional Issues

By Evan Ridley. 

Amidst a wave of anti-LGBTQ bills currently being brought around the nation, Arizona now has multiple bills in the State Senate proposing to restrict drag performances. Since January, State Senators have introduced four separate bills looking to criminalize drag and the showing of drag to minors, as well as restrict when and where drag shows may be performed.

What is drag? It’s the act of dressing up as a different gender and exaggerating certain attributes or qualities for entertainment. While the term “drag” has been used for over 150 years, the act likely has its roots in theater. Some argue that the modern idea of drag arose from Shakespeare, where male actors had to play female roles. However, the act of men playing women in theatrical performances dates as far back as Ancient Greece. Recently, drag has received political heat as various states look to criminalize or restrict drag performances. 

The Drag Bills Currently in the Arizona Senate

There are currently four bills in the Arizona Senate that look to limit or criminalize drag shows. Senator John Kavanaugh introduced SB 1028 and SB 1030. SB 1028 would make it a crime to perform in drag either on public property or where the performance “could be viewed by a minor.” The resulting punishment for a first-time offense could be imprisonment for up to 6 months, while a repeat offender could be imprisoned for up to 2 years. SB 1030, meanwhile, would require drag shows (and the establishments that host them) to get permits and would ban any drag performances between 1 a.m. and 8 a.m.

State Senator Anthony Kern introduced SB 1026, which would prohibit the use of state funds for any “drag show targeting minors,” as well as prevent state funds from going to any person, institution, or facility that hosts such performances. Finally, State Senator Justine Wadsack introduced SB 1698. SB 1698 would make it a crime punishable by five to fifteen years imprisonment to allow a minor under the age of 15 to view a drag show. Charges could be brought against the child’s parents or guardians, anyone who allows a minor to enter a drag show, or anyone who performs or allows another person to perform a drag show in front of the child.

What Are the Issues with the Bills?

As some have already pointed out, these bills may run afoul of Constitutional protections. The First Amendment provides protection against the government restricting free speech, and this principle applies to some non-spoken actions as well. In Barnes v. Glen Theatre, Inc., the Supreme Court went as far as to find that even nude dancing was a form of protected speech under the First Amendment. However, even if speech is protected under the First Amendment, the government can override that protection in limited circumstances. In Barnes, the Supreme Court found that even though nude dancing was protected, it also upheld the law in question restricting nude dancing. The law was determined to advance a substantial governmental interest by protecting morality, and the restriction on nude dancing still allowed for other forms of dancing that served the same purpose.

Given that nude dancing is protected under the First Amendment, it’s also likely true that drag and drag performances are as well. However, as we see with Barnes v. Glen Theatre, just because drag is protected is not the end of the story. If these bills are determined to protect public morality—which may be their purpose, as they attempt to limit minors viewing drag shows—the next step is to determine if there are other ways to express the same message as drag shows express. If not, the bills may be unconstitutional. But if there are alternatives, the bills may pass this portion of the test.

Another issue is with the definition of drag, which is defined in multiple bills as the act of dressing “in clothing and makeup opposite of the performer’s . . . gender at birth to exaggerate gender signifiers and roles.” This broad definition encompasses far more than just drag shows.  As critics of the bill have discussed, this definition could include the children’s movie Mulan—where the female main character dresses as a man to join the army—or Robin Williams in Mrs. Doubtfire. It could additionally stop performances of Shakespeare’s “Twelfth Night” and “Merchant of Venice.”

Laws that prohibit any type of speech that are vague in what is restricted or over-encompassing in what they restrict are likely to be found unconstitutional. Since the definition of drag in these bills is so broad as to encompass works of Shakespeare and classic movies instead of just drag shows, the State bills may be unconstitutional because of their definition of drag.

What is Next for the Bills?

Each of these bills has a long way to go before they would be enacted into law. All four have just been introduced to the Senate, with only SB 1028 having been voted out of committee. This means that each of the bills still needs the approval of the majority of the Arizona Senate and House of Representatives before they are enacted into law. But if both houses of the Arizona Legislature do vote to enact the bills, Governor Katie Hobbs still must sign the bills into law. Governor Hobbs has previously issued an executive order prohibiting workplace discrimination against state workers for their sexual orientation and gender identity and released a statement during her campaign for governor that she “stands with the trans community,”  so it is highly unlikely any anti-drag bill that reaches her desk will be approved.