Andrew DeMillo/Associated Press
- A GOP Arkansas bill targeting drag is so confusing it may not even apply to most drag performances, according to a constitutional expert.
- If enacted, the bill would classify drag performances as adult-oriented businesses.
- According to an Arkansas drag queen, the bill would severely impact the LGBTQ+ community.
Arkansas Republicans proposed a bill that would classify drag performances as “adult-oriented businesses” earlier this month, another example of a nationwide wave of anti-drag and anti-trans legislation pushed by GOP lawmakers.
But the bill, SB43, is so confusing it may not even apply to most drag shows, UCLA School of Law professor Eugene Volokh said.
If enacted, it would classify a drag performances and places that host them as “adult-oriented” — like adult video stores and strip clubs. This would restrict where in public drag can be performed and who can attend a drag performance.
SB43 also features a section about intending to appeal to the “prurient interest,” a term not defined in the bill. According to Volokh, it’s clearly defined in obscenity law.
“It’s one of the prongs essentially of the three-prong obscenity test,” Volokh said. “And it means a shameful or morbid interest in sex or excretion and sex in the sense of sexual activity.”
But it’s also a relatively narrow term. “It has to be, essentially in some respect, erotic,” he said, for it to meet the standards of “prurient interest.”
“The typical drag performance, this law properly applied, that is to say, applied with an understanding of the legal meaning of prurient interest, would not cover them,” Volokh said.
Drag performances have a long cultural and political history that is more often focused on community and celebration of expression, Insider’s Yelena Dhazahova previously reported. While gender and sexuality may play a role in some drag shows, it’s not always the case.
SB43 — which was first proposed in the state’s senate and later passed and sent to the state House of Representatives — is also confusing because of its shifting language.
The original bill defines a drag performance as when one or more performers “Exhibit a gender identity that is different from the performer’s gender assigned at birth using clothing, makeup, or other accessories that are traditionally worn by members of and are meant to exaggerate the gender identity of the performer’s opposite sex” while performing.
The latest version of the bill, available January 30, does not include that section. According to an amendment released on January 27, those lines were substituted with a section that drag performances are defined as when one or more performers “Exaggerates sexual aspects of the masculine or feminine body for entertainment purposes” while performing.
The Arkansas Bureau of Legislative Research did not immediately respond to Insider’s request for comment on why the bill was amended.
To Volokh, this new line is vague enough to “breed confusion.”
“In normal context, it’s hard to for me to see what exaggerating sexual aspects of a body for entertainment purposes means. That’s not a legally well-defined term,” he said.
It’s so confusing, it could be more likely to apply to a strip club performance than a drag performance but even then, Volokh said, it has to feature exaggerated sexual aspects and appeal to the prurient interest.
Arkansas drag queen MD Hunter has been “on the front lines” fighting against SB43
On January 19, Arkansas drag queen MD Hunter gave a testimony before the Arkansas Senate about SB43.
Hunter, whose stage name is Athena Sinclair, explained that “nudity is not a thing that you would probably see at a drag show.”
Hunter also spoke about the variety of performances and work that drag queens do across the community, including drag queen story time in schools and LGBTQ+ pride events.
In an interview with Insider, Hunter, who has a long history of political and social activism, said they have been fighting against SB43 since its creation.
“As soon as this bill was proposed I knew I was going to be on the front lines against it. Our community is smaller here in Arkansas so everyone reached out to me asking what we could do to stop this,” Hunter said.
According to Hunter, the bill’s restrictions would severely impact venues that offer drag performances.
“If passed it requires different regulations for our safe places that have drag, including a distance from a park or public place. All of our venues are currently in violation of this so they would either have to move or quit having drag.”
The bill would also add “addition stress and fear” for nonbinary and trans people.
“I can take Athena off, they can’t, so I’m deeply concerned for our trans community,” Hunter said.
Despite the confusing nature of the bill, drag advocates are worried about how it could be applied. Organizations, like the ACLU of Arkansas and the Human Right Campaign, have released statements condemning SB43.
Human Rights Campaign State Director Eric Reece said: “This is just another example of radical politicians in Arkansas spreading propaganda and creating more stigma, discrimination, and ultimately violence against transgender and non-binary people just to rile up extreme members of their base, the only voting bloc they are moving on these issues.”