The ongoing legal battle to ensure drag performance rights persists amid rising efforts to ban them across several states. Lawyers for Civil Rights Executive Director, Iván Espinoza-Madrigal, argues that advocates could protect drag by leveraging civil rights precedents, particularly decisions by the US Supreme Court and federal courts.
In recent years, states and institutions such as Texas A&M University have attempted to impose bans on drag shows, with varied outcomes across different jurisdictions. For instance, drag performances have been met with favorable legal rulings under the First Amendment in states like Utah and Montana, signaling a judicial acknowledgment of drag as a protected form of expression. Specifically, a federal district court judge in Montana issued a temporary restraining order on a law prohibiting drag story hours, emphasizing its potential harm to those outside traditional gender norms, including trans and Two-Spirit individuals. Similarly, in Utah, courts ruled in favor of Southern Utah Drag Stars when a city attempted to prevent a public park drag show—a decision predicated on perceived discriminatory enforcement actions by the local authorities (Bloomberg Law).
Espinoza-Madrigal suggests framing drag bans within a broader historical context of discrimination against the LGBTQ+ community, drawing parallels to cases like Romer v. Evans and Obergefell v. Hodges. By doing so, advocates can employ 14th Amendment protections alongside First Amendment arguments. Yet, not all cases have favored drag; West Texas A&M University was notably successful in preventing a drag performance by describing the art form as misogynistic, drawing incorrect comparisons to “blackface minstrelsy”—an analogy criticized for misunderstanding the unique and distinct origins and expressions of drag.
In addition to constitutional defenses, Espinoza-Madrigal encourages exploring the economic aspects of drag, potentially mounting legal actions for business disruption and financial loss to underpin their constitutional claims. This approach, he argues, could provide courts with quantifiable data supporting the protective measures for drag, fostering both economic growth and diverse representation.
As the legal landscape continues to evolve, examining drag through legal lenses of expression and commerce could serve as a crucial strategy for safeguarding the art form and promoting inclusive dialogue.