Bill Restricting Drag Shows Faces Questions Over Legality, Discrimination During Judiciary Committee Hearing

The Montana House Judiciary Committee on Feb. 9 heard testimony on House Bill 359, legislation introduced by Rep. Braxton Mitchell, R-Columbia Falls, that would prohibit minors in the state of Montana from attending drag shows. During more than two hours of testimony, LGBTQ activists, civil rights groups, educators, library representatives and drag performers opposed what they called an ambiguous, discriminatory and unconstitutional bill, which was backed by conservative Montana parents and lobbyists.

The hearing marked yet another contentious day in Helena, as a slew of Republican-backed bills this session pertaining to Montana’s queer community have prompted considerable pushback and spawned lengthy hearings in recent weeks.

As it was written at the time of the hearing, the proposed legislation sought to prohibit minors from attending drag shows, which it defined as “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 for entertainment to appeal to a prurient interest.” The bill would ban minors from entering a “sexually oriented business,” which the bill defines as a “nightclub, bar, restaurant, or similar commercial enterprise” that holds drag performances. It would also prohibit drag performances from occurring in schools or libraries, with the penalty of teacher license revocation by the Montana Board of Public Education.

After the Feb. 9 hearing, Mitchell introduced amendments that redefined a drag show as a performance “that features topless dancers, exotic dancers, strippers, or male or female impersonators who provide entertainment that appeals to a prurient interest,” removed restaurants from the definition of “sexually oriented businesses” and amended the specific bans of public entities hosting drag performances. Specifically, Mitchell removed language that would require the Board of Public Education to revoke the licenses of teachers who facilitate a drag show, and rather wrote that “proceedings must be initiated to suspend the teacher.”

During the hearing, proponents of the bill emphasized a desire to “protect” Montana’s children and harnessed popular anti-LGBTQ narratives that paint queer individuals as “groomers” and sexual abusers, tropes that have been widely condemned by advocacy groups and human rights organizations.

“Who would be so sick as to lobby in favor of exposing children to public displays of what we all know is a sexual fetish?” Lee Barton, who testified as a private citizen, said, referencing “open displays of child sexual grooming and abuse.”

“Pushing this material on kids forces their underdeveloped brains to try and make sense of things that they can’t,” Jessie Browning, a representative of the Yellowstone County chapter of the conservative advocacy organization Moms for Liberty, said. “Studies show this can increase mental health problems in kids, such as depression, eating disorders, anxiety and self harm.”

Browning did not present specific data to the committee, and there is not widely available peer-reviewed research substantiating these claims.

Another proponent of the bill was Arthur Schaper, field director for “pro-family” activist organization MassResistance, a national anti-LGBTQ group.

“Some will charge that this is an attack on the so-called LGBT community. But this is my question to LGBT activists, why are they so determined to have garish parodies of women groom children?” Schaper stated, adding that the Legislature should “stop allowing LGBT militants to bully and shame and groom children.”

Other proponents included Office of Public Instruction Superintendent Elsie Arntzen, Jeff Laszloffy of the Montana Family Foundation and numerous private citizens and parents, including some whose testimony hinged on what they described as an impending “culture war,” LGBTQ “lifestyle choices” and a fear child sexual abuse at the hands of drag performers.

Representatives from the Human Rights Campaign, the Montana Federation of Public Employees, the American Civil Liberties Union (ACLU) of Montana, the Montana Library Association, the Montana Coalition Against Domestic and Sexual Violence and Planned Parenthood of Montana, as well as a number of queer Montanans, drag performers and parents, opposed what they characterized as vague and discriminatory language outlined in the bill.

Sam Forstag, representing the Montana Library Association, said the organization was not aware of any drag performances that had taken place in any public library throughout Montana thus far. Drag “story hours,” or events where drag performers read books to children, have become central in the national fight over children and drag shows, and were widely discussed during the hearing.

Donald Stuker, a Bozeman resident and cattle rancher who has performed drag in Montana for decades, said the bill “attempts to solve a problem that doesn’t exist” and legislates “a world where children are taught to be afraid.”

SK Rossi, representing the Human Rights Campaign, pushed back on the narrative of a “culture war” being waged by the LGBTQ community through drag performances.

“The LGBTQ community is not forcing drag shows on anyone, we’re not forcing people to be in our lives,” Rossi said. “All of these bills that come forward are forcing us to be here. The culture wars are being fought and moved forward, not by us. We don’t want to be here talking about these bills, we just want to be left alone.”

Opponents raised questions over the implementation of the bill, which many said is dangerously vague and leaves an array of businesses susceptible to receiving fines. Many questioned if performances of plays such as “Rent” or “Peter Pan” would be barred under this legislation, or a tradition where football players dress like cheerleaders at a high school, because the circumstances involve men dressing in traditionally female clothing, or vice versa.

ACLU of Montana Staff Attorney Akilah Deernose said the bill “does not pass constitutional muster because it is impermissibly vague and overly broad” and “censors protected expression.”

Mitchell’s bill is the latest in an array of legislative proposals that would impact Montana’s LGBTQ community, including a bill by Sen. John Fuller, R-Kalispell, that would ban gender-affirming medical care for transgender minors; a bill by Rep. Amy Regier, R-Kalispell, that would allow doctors to deny medical care based on “ethical, moral, or religious beliefs or principles”; a bill by Rep. Brandon Ler, R-Savage, that would allow children to misgender or deadname transgender peers in schools; and a bill by Rep. Bob Phalen, R-Lindsay, that would tighten the state’s obscenity laws, likely restricting access to LGBTQ-related content.

Mitchell during the hearing asked that testimony about the bill being “anti-transgender” be limited “because nothing in this bill mentions transgenders,” a characterization that opponents pushed back on during testimony.

The House Judiciary Committee has not yet announced when they will vote on the bill. Twelve of the bill’s listed Republican sponsors serve on the House Judiciary Committee. More information about the 68^th Legislature can be found at www.leg.mt.gov.

Editor’s Note: An earlier version of this article referenced the Southern Poverty Law Center’s designation of MassResistance as a hate group. Upon review, the Beacon has removed the reference.