Introduction
When this Note speaks of drag, it will speak of joy. It will speak of brunch servers,1 preschool teachers,2 construction workers,3 opera singers,4 academics, and lawyers (yes, lawyers5) transforming from Clark Kent into Beyoncé.6 It will speak of children who have been scolded and bullied for their differences being celebrated for the very qualities that made them stand out.7 It will speak of the friends of this Note’s author — their humor, their talent, and their generosity.
The joy of drag is, unsurprisingly, under attack. A flurry of states, counties, and cities have passed laws seeking to stop the spread of these glamorous, liberating, and persuasive performances. These attacks have been couched in homophobic language that portrays drag performers as sexual deviants — or, worse, “groomers.” In just a short span of time, anti-drag regulations have generated legal, emotional, physical, and economic harms to drag performers and the LGBTQ+ community.
Luckily, a constitutional amendment ratified by men in makeup8 wearing wigs9 prevents the passage of laws that aim to suppress drag performances.10 Some academics, such as Professor Catharine MacKinnon, have decried the First Amendment as having “morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.”11 However, in its protection of drag performers, the First Amendment demonstrates that its most valiant doctrinal aims still persist — but its practical impact might be lacking. Even after anti-drag regulation is declared unconstitutional, its primary harms persevere: speech remains chilled, social norms remain altered, and drag remains unduly politicized. And bullish legislators have accomplished this feat with the passage of bills that “most legal commentators, and really anybody with even a passing understanding of how the First Amendment works,” would have deemed unconstitutional.12
This Note proceeds as follows. Part I describes the history of drag, highlighting the centuries-long trajectory of the art form in order to elucidate its expressive and political nature. Part II describes recent attempts to restrict drag performances and situates them within a history of anti-cross-dressing laws and anti-LGBTQ+ rhetoric. Part III surveys the protections afforded by the First Amendment to drag performers, arguing that the vast majority of anti-drag laws are unconstitutional. Part IV utilizes an expressive law framework to unpack distinct harms generated by anti-drag legislation and argues that these harms are not adequately remedied by judicial decisions overturning statutes. While anti-LGBTQ+ sentiment will not be eradicated by the elimination of anti-drag laws, attacking these regulations protects the emotional and financial interests of some of society’s most marginalized members.
I. The History of Drag: From Center Stage, To the Shadows, And Back Again
Before William Dorsey Swann was (perhaps) the world’s first drag queen — he was enslaved.13 A newly emancipated Swann threw lavish dance parties in Washington, D.C., where he and his closest friends would don women’s dresses, corsets, bustles, long hose, and slippers — as the Washington Critic put it, “everything that goes to make a female’s dress complete.”14 In 1896, Swann’s fêtes suffered a brief intermission when he was convicted for “keeping a disorderly house” (in less genteel terms, running a brothel).15 Undeterred, Swann continued throwing parties for “his secretive all-male family” despite multiple run-ins with the D.C. police.16 Against a backdrop of rigid nineteenth-century attitudes toward gender, “Swann and his house of butlers, coachmen, and cooks — the first Americans to regularly hold cross-dressing balls and the first to fight for the right to do so — arguably laid the foundations of contemporary queer celebration and protest.”17 Not only a queen of drag, Swann was a queen of liberation, joy, and compassion.
Swann exists in a long line of artists who have used drag to challenge social mores, free themselves from rigid expectations of gender, and build community among fellow queer and transgender individuals. This Part examines this history of drag and describes its role in modern society.
A. Drag’s Beginnings
Long before the first drag queen came the first drag performances. Typically, a drag performance is defined as one in which “the intent is an undoing of gender norms through doing (or dressing) the part of the opposite sex.”18 However, modern drag performers often enhance characteristics of their own gender to convey similar messages.19 The practice of drag is both storied and universal: cultures across the globe have applauded the performances of cross-dressing men.20 In Elizabethan theatre, the term “to boy” meant “to play a female role on the stage irrespective of the actor’s real age.”21 And in Japan, the onnagata perfected the art of female impersonation — famed performer Yoshizawa Ayame wrote to aspiring boys: “You cannot be a good onnagata unless you are like a woman in daily life.”22 These earliest drag performances were largely driven by prohibitions against women performing in public.23
However, some historians argue that the literal roots of modern drag are more recent than the ancient stage.24 The first known usage of the term “drag” was in 1860s Victorian England, where Ernest Boulton described his cross-dressing act as “drag.”25 And during the same period in the United States, drag performers “starred in racist minstrel shows, during which mostly white actors wore blackface to portray racial stereotypes of African Americans.”26 The racist caricatures soon gave way to portrayals of “glamorous white women with thin waists and elegant makeup.”27 Julian Eltinge, one of these performers known for his ladylike appearance, “launched the Eltinge Magazine, dispensing beauty and fashion tips to his adoring female fans.”28
While Eltinge was celebrated on stages across the nation, Black and Latinx individuals of the nineteenth century cultivated a tradition of drag culture that is still alive today.29 Swann, as discussed in the opening of this section, began hosting drag balls as early as 1882.30 And in Harlem, the first recorded drag ball occurred in 1869 in the Hamilton Lodge.31 The practice continued, and these galas flourished amidst the Harlem Renaissance.32 Regretfully, few records exist from the earliest drag balls, “because participating in them was extremely risky due to gender and social stigmas.”33 At one point, the moral reform organization known as the Committee of Fourteen issued a report describing the balls as a “scene filled with ‘phenomenal’ ‘male perverts’ in expensive frocks and wigs, looking like women.”34
The famed drag balls of Harlem continue until the modern day, and were featured in the 1990 documentary Paris Is Burning.35 Even outside of New York, modern drag performers draw heavily from the traditions of the Harlem balls.36 The popular dance style of “vogue” — a “type of improvisational dance inspired by the poses of models in fashion magazines” — originated in the Harlem ballroom scene.37 And modern drag performers often build families reminiscent of the kinship structure of New York ballroom38 — “drag mothers” who care for and instruct their “drag daughters” or “drag sons” on the ways of the trade.39
B. Modern Drag
Today, drag queens have infected the cultural zeitgeist — influencing television, fashion, and even politics. In 2009, the television series RuPaul’s Drag Race premiered and firmly cemented drag performances on the national stage.40 Although drag has been featured in American pop culture for decades (such as in the movies Kinky Boots, Tootsie, and Mrs. Doubtfire), “[n]othing about the inner lives of queens has hit critical mass quite like ‘Drag Race.’”41 Several hundred episodes later, RuPaul’s Drag Race has become widely popular, and has introduced new generations and demographics to the joy of drag.42
While modern queens can be categorized into diverse taxonomies — such as “glamour” queens,43 “comedy” queens44 and “art” queens45 — lip-syncing is “de rigueur in drag today.”46 In lip-sync performances, drag performers select iconic sound clips (from songs, movie scenes, or reality television) and craft outfits, dances, and acting that lift the lyrics to a highly stylized pitch.47 Drag historian Professor Joe E. Jeffreys believes that lip-syncing has its origins in “the practice of young gays performing the songs of beloved divas and ingénues . . . in the privacy of a bedroom or basement.”48 While the performance style made less money for performers than singing or comedy, it was “lower-tech and more accessible,” which helped lead to its widespread adoption following the 1960s.49
Drag has always been about more than looking and dancing beautifully — like Swann and attendees of the early Harlem Balls, modern drag queens have been involved in both personal and political liberation for decades. Some view Swann’s 1896 petition to President Cleveland for a pardon as the first example of an American taking “specific legal and political steps to defend the queer community’s right to gather without the threat of criminalization, suppression, or police violence.”50 At the Stonewall uprising, drag queens like Stormé DeLarverie51 played a central role in the foundations of the LGBTQ+ rights movement.52 Drag queens have run for53 — and won — public office.54 In 2023, drag queens and kings may perform proudly in bars, restaurants, parades and television, but the radical and political nature of drag has yet to cease.
II. The History of Anti-drag Legislations: A Familiar Tale with New Characters
The ACLU has identified over 500 anti-LGBTQ+ bills introduced in state legislatures during their 2023 legislative sessions.55 Of these bills, many target drag performances.56 On March 2, 2023, Tennessee became the first state in the nation to pass a law with strict limitations on drag.57 The Tennessee Adult Entertainment Act (AEA) extended the definition of “[a]dult cabaret entertainment” to performances including “male or female impersonators” and prevented such performances on “public property” or in “a location where the adult cabaret entertainment could be viewed by a person who is not an adult.”58
Many viewed the Tennessee AEA as an attack on queer and trans communities — a “subtle and sinister way to further criminalize just being trans.”59 Unsurprisingly, the statute was challenged in court.60 In Friends of Georges, Inc. v. Mulroy,61 Judge Parker of the Western District of Tennessee found Tennessee’s AEA unconstitutional after a full bench trial.62 However, the decision in Friends of Georges is not the last word on Tennessee’s drag law — the decision applied to only one county,63 and other Tennessee officials have promised to continue enforcing the law.64 Plus, Tennessee appealed the decision, purportedly “to ensure Tennessee’s laws continue to protect Tennessee’s kids.”65 Notwithstanding the holding, anti-drag advocates are eager to use government authority to suppress the expression of drag performers.
As discussed in the opening of this Note, Tennessee is not alone in its hostility to drag performances. Other states — such as Florida66 and Texas67 — have followed suit and enacted anti-drag regulations. And, localities across the country have instituted ordinances or policies which restrict drag performance.68 Regretfully, some public venues have even elected to stop renting out spaces to any groups in order to avoid having to rent them to drag performers.69 Debates over drag have infected communities across the country, subjecting an already marginalized group of individuals to a greater number of incidents of threat and violence.
This Part examines the modern trend of anti-drag legislation, situating it against a historical backdrop of anti-cross-dressing regulations and patterns of anti-LGBTQ+ rhetoric.
A. Anti-cross-dressing Laws
In the mid-nineteenth century, St. Louis, Missouri, passed one of the nation’s first laws against public cross-dressing.70 The ordinance made it a misdemeanor for any individual to “appear in any public place . . . in a dress not belonging to his or her sex.”71 Following in St. Louis’s wake, “[o]ver forty U.S. cities passed similar laws before the end of the nineteenth century.”72 Government bodies adopted anti-cross-dressing ordinances amidst larger anti-vice campaigns targeting other morally controversial behavior such as prostitution and public drunkenness.73 Although changing twentieth-century fashion norms made prosecution more difficult, the “intolerant laws remained on the books and were used as a flexible tool to harass masculine women and anyone identifying as transgender or gender non-conforming.”74 For example, in New York, “butch lesbians” were arrested “for wearing less than three pieces of women’s clothing, in violation of local law.”75
While these laws may seem to regulate only clothing, anti-cross-dressing laws can be understood as “a central mechanism for policing a whole series of ‘belongings’ — not only the items of clothing that ‘belonged’ to a specific sex but also the types of people that ‘belonged’ in public space and the types of bodies that ‘belonged’ in the categories of man and woman.”76 In San Francisco, “police used cross-dressing law to regulate multiple gender offenses, including those of feminist dress reformers, ‘fast young women’ who dressed as men for a night on the town, female impersonators, and people whose gender identification did not match their anatomy in legally acceptable ways.”77 Thus, anti-cross-dressing laws are not only legal artifacts, they are also cultural ones — they embody the bigoted impulses of unchecked majorities. These laws mandated the seclusion of queer identities, and reinforced societal assumptions regarding the binary nature of gender.
Today’s modern anti-drag bills “have clear connections to earlier laws against public cross-dressing that swept the nation in the nineteenth century and terrorized queer and trans communities in the 1950s and 1960s.”78 Like the anti-vice movements of our nation’s history, anti-drag legislation is part of a larger conservative movement that seeks to regulate hot-button cultural issues such as critical race theory, gender-affirming care, and diversity, equity and inclusion initiatives.79 Anti-drag and anti-cross-dressing laws also serve interrelated aims: they encourage government-enforced concepts of gender; isolate queer ideas and expression into the margins of society; and subjugate queer individuals through government institutions.
B. Grooming Hysteria
According to the proponents of anti-drag legislation, these measures are not about oppressing drag queens, but rather, protecting children. As Arkansas State Senator Gary Stubblefield stated, “I can’t think of anything good that can come from taking children and putting them in front of a bunch of grown men who are dressed like women.”80 Such statements are in accord with a larger right-wing trend of restricting children from experiencing LGBTQ+ ideas and individuals.
Casting pedophilic motives onto LGBTQ+ advocacy is “one of the oldest narratives in the homophobic playbook.”81 Conservatives have incorrectly wielded the term “grooming” — “which describes the actions an adult takes to make a child vulnerable to sexual abuse” — to “imply that the LGBTQ community, their allies, and liberals more generally are pedophiles or pedophile-enablers.”82 For example, Florida Governor Ron DeSantis’s press secretary described the controversial “Don’t Say Gay” bill83 as “the Anti-Grooming Bill” and tweeted that “[i]f you’re against [it], you are probably a groomer or at least you don’t denounce the grooming of 4–8 year old children.”84 The utilization of grooming rhetoric in this manner equates homosexuality with pedophilia, and therefore transforms homophobic acts into anti-pedophilic acts.
The intersection of grooming rhetoric and anti-drag sentiment is perhaps no more pronounced than in responses to Drag Story Hour — an organization that conducts events at libraries and community centers across the nation, seeking to “capture[] the imagination and play of the gender fluidity of childhood and give[] kids glamorous, positive, and unabashedly queer role models.”85 Since its 2015 founding, Drag Story Hour has become both a “global phenomenon”86 and a “flash point in the culture wars.”87 In Ohio, “someone threw a Molotov cocktail at Community Church of Chesterland in the days before it hosted a Drag Queen Story Hour.”88 In New York, protesters clashed with counterprotesters at a Drag Queen Story Hour hosted by New York Attorney General Letitia James89 and others “descended on the home and the office of a gay member of the New York City Council . . . [,] vandalizing the walls with homophobic graffiti and attacking one of his neighbors, over his support for Drag Story Hour events at local libraries.”90
Against a national backdrop of anti-LGBTQ+ sentiment, it is unsurprising that Drag Story Hour has been forced into the spotlight. Much of anti-LGBTQ+ violence can be understood “not in terms of individual hatred but as an extreme expression of American cultural stereotypes and expectations regarding male and female behavior.”91 When protestors attend these events, they are often deputized and armed with anti-grooming rhetoric. For example, a Proud Boy who disrupted an event in California wore a shirt that read “Kill your local pedophile,” and in Texas, the group “Protect Texas Kids” chanted “groomers” outside of a family-friendly drag event.92 The anti-pedophilic narrative operates as a moral salve for homophobic behavior. In the minds of anti-drag protesters, the harms they inflict on drag performers and supporters are justified by the perceived protection of children.
Contrary to the rhetoric fielded by anti-drag advocates, there is a lack of evidence demonstrating that exposure to drag queens leads to undesirable results in children. And as psychotherapist Dr. Joe Kort writes: “As a longtime sex and gender therapist, I know that there is no substance to the argument that exposing anyone, including children, to the reality of people with a different sexual orientation or gender identity influences the children’s innate sexual orientation or gender identity.”93 Instead, activities like Drag Story Hour introduce children to the idea that “all others, despite appearance or sexual orientation, are worthy of respect, and to a world that is not divided into ‘us’ and ‘others.’”94
III. The First Amendment and Drag: Whig-Made Protections for Men Wearing Wigs
In an interview with National Public Radio, Idaho drag queen Frida Nightz stated most aptly: “Drag performance — it’s just so powerful. And that’s probably why they fear it, you know.”95 As Parts I and II suggest, drag is incredibly expressive, viewpoint-related conduct. Thus, it naturally follows that anti-drag regulations are primarily concerned with suppressing certain categories of expression and viewpoints.96 These aims are precisely the kind of impermissible goals that the First Amendment forbids. Anti-drag bills seek to stop the spread of a specific queer message — that gender is a construct, one that we are all able to take apart.97
This Part proceeds as follows. First, it describes the First Amendment’s persuasion principle, which explains on an instinctual level why the First Amendment’s values are in direct opposition to the aims of anti-drag regulations. Second, the Part establishes that anti-drag regulations target expressive conduct and are primarily concerned with suppressing communication. Third, the Part argues that targeted suppression of drag performances runs afoul of the First Amendment. Although the unconstitutionality of anti-drag regulations might seem obvious — the conclusion has also been reached by a variety of district courts and in Professor Mark Satta’s article Shantay Drag Stays: Anti-drag Laws Violate the First Amendment98 — this Part hopes to better situate the legal conversation within the historical and social contexts surrounding anti-drag regulations.
A. Drag Is Persuasion
Notoriously splintered, First Amendment doctrine requires a diverse taxonomy of tests to determine any statute’s constitutionality. However, Professor David A. Strauss’s influential article Persuasion, Autonomy, and Freedom of Expression posits that in all domains, the “government may not suppress speech on the ground that the speech is likely to persuade people to do something that the government considers harmful.”99
In the realm of offensive speech, this persuasion principle is “fully consistent” with First Amendment doctrine.100 Strauss claims that there are two different categories of offensive speech that governments often attempt to regulate: (1) speech that is offensive because “people . . . believe it will persuade some of those who hear it to do bad things” and (2) speech that is intrinsically offensive, “that is, offensive without regard to its persuasive effect on anyone” but is merely “distasteful (in the way that offensive sights, odors, or noises other than speech might be distasteful)” or alternatively, speech “that is so offensive that it can be said to inflict a psychic wound on the listener.”101 Under the persuasion principle, the First Amendment prohibits regulations targeting offensive speech of the former category, but prohibits regulations targeting the latter category only in limited circumstances — such as when a government’s actions are pretextual, or when the effects of the offensive speech are potentially both intrinsically offensive and persuasive.102
The persuasion principle explains, at an instinctual level, why regulations targeting drag are in violation of the First Amendment. In a pluralistic and divided nation, it is hardly surprising that drag — with its radical and political nature — is controversial. But, the controversy of drag has more to do with its communicative, persuasive impact than with an intrinsically offensive nature — drag is offensive to some because of their desire for a heterosexist society, that is, they are offended by drag because they believe it will “persuade some of those who hear it to do bad things.”103 Drag artists challenge heterosexism, and in doing so, influence audiences to question norms around gender in their own lives. While liberal ideas of gender might be offensive to some, they are not intrinsically offensive.
B. Drag Is Expressive
The First Amendment’s protections extend farther than just spoken words and written language — conduct deemed sufficiently “expressive” can also fall within the Constitution’s ambit.104 As discussed in Part I, the history of drag within our society demonstrates that drag performances likely meet this bar. In determining whether an act “possesses sufficient communicative elements to bring the First Amendment into play,” courts consider whether: (1) an “intent to convey a particularized message was present”; and (2) “the likelihood was great that the message would be understood by those who viewed it.”105 Like the donning of black armbands to protest the Vietnam War,106 the burning of American flags,107 and the decision of African Americans to sit in all-white libraries during the civil rights movement,108 the art of drag is controversial precisely because of the particular message it seeks to convey. When an individual sees a drag queen, they see a performer who is rebelling against heterosexist notions of gender — and it is this perceived message that makes drag objectionable to its opponents.
However, not all regulations that burden expressive conduct are subjected to the full force of the First Amendment: government regulations “unrelated to the suppression of free expression”109 do not run afoul of the Constitution if they further merely a “sufficiently important governmental interest.”110 As Part II sought to demonstrate, the history of anti-drag regulations suggests that they do not qualify for this lowered standard — anti-drag regulations are in fact primarily concerned with the suppression of pro-LGBTQ+ views and speech in front of children.111 While a court “will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive,”112 the lack of documented harms surrounding drag shows113 and the close, inseparable nature114 of the messages conveyed by drag (anti-heterosexism and the flexibility of gender) and the manner of expression (exaggerations of gender and cross-dressing) demonstrate that anti-drag regulations have more than an “incidental effect on the expressive element of the conduct.”115 Instead, banning drag must be understood as a “case[] in which banning the means of expression so interferes with the message that it essentially bans the message.”116
The above conclusions may seem hardly controversial — a Utah court stated that the city of St. George’s arguments to the contrary did “not merit discussion”117 and Texas’s attempt to field the “secondary effects” defense failed because “the plain language of [the state’s anti-drag regulation] and the legislative history shows the primary purpose of the law is to” suppress certain topics and viewpoints.118 The history of drag performances and anti-drag regulations demonstrate that this particular culture war is one about speech and expression — the First Amendment’s protections are wholly applicable.
C. The First Amendment’s Protections
Once it becomes clear that the majority of drag constitutes expressive conduct, it naturally follows that targeted attempts to regulate the art form run afoul of the First Amendment. If legislators explicitly target drag performances, they can trigger strict scrutiny under the content-discrimination doctrine.119 Attempts to categorize drag as obscene and thus devoid of First Amendment protection120 are likely to fail under current doctrine.121 And, the notion of persuading a court to recognize drag as a new unprotected category of speech is likely foreclosed.122 But, even if a regulation targets allegedly unprotected categories of drag performances, the statute must regulate the performances in a viewpoint-neutral way.123 If a legislator attempts to avoid content or viewpoint discrimination by broad or vague drafting, they run the risk of creating a statute that violates the overbreadth124 or void-for-vagueness125 doctrines. Thus, a constitutionally permissible anti-drag regulation is almost impossible to imagine. Despite the impossibility of the task, a variety of states and communities have still attempted to suppress drag performances in a manner inconsistent with the First Amendment.
Of all the litigation attempts that have sought to set aside anti-drag regulations, drag queens have unanimously prevailed. As described in Part II, Friends of Georges found Tennessee’s drag ban unconstitutional under the First Amendment.126 Among other flaws, the court found that Tennessee’s use of the term “male or female impersonators” discriminated “against the viewpoint of gender identity — particularly, those who wish to impersonate a gender that is different from the one with which they are born.”127 In Imperial Sovereign Court of Montana v. Knudsen,128 a federal court in Montana relied on Friends of Georges to temporarily block the enforcement of Montana’s drag law.129 In Southern Utah Drag Stars v. City of St. George,130 the United States District Court for the District of Utah relied upon the public forum doctrine to reverse the denial of a park permit for a drag show, writing that the First Amendment “ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.”131 In HM Florida-ORL, LLC v. Griffin,132 a court enjoined enforcement of Florida’s anti-drag regulation, writing that the “harm to [the] Plaintiff clearly outweighs any purported evils not covered by [existing] Florida law” because “existing obscenity laws provide [the state] with the necessary authority to protect children from any constitutionally unprotected obscene exhibitions or shows.”133 And, most recently, in Woodlands Pride, Inc. v. Paxton,134 a district judge set aside Texas’s anti-drag regulation, labeling it a violation of the content-135 and viewpoint-neutrality doctrines,136 the overbreadth doctrine,137 and the vagueness doctrine.138 However, these victories are not the last word on any of these statutes — subsequent appeals and litigation might keep drag performers in any jurisdiction from having a firm answer on the enforceability of anti-drag laws for years to come.
IV. The Unremedied Expressive Harm of Anti-drag Laws: If Drag Speaks, So Do Laws Made About It
Law influences behavior beyond the direct threat of legal sanction — like drag, laws speak too.139 As discussed in the preceding Part, protecting drag performers likely requires no reinvention of First Amendment doctrines. However, even when anti-drag regulations are ultimately set aside by courts, drag performers still endure tangible harms from government actions. If one reframes debates about drag as debates over the government’s ability to convey anti-drag messages, then the drag queens have already lost the battle — communities across the nation have communicated that they are committed to suppressing queer expression, and if it weren’t for that meddling First Amendment, drag performers would not be welcome in public spaces.
This harm — a distinctly expressive one — is only marginally remedied by judicial decisions repealing the legal effect of anti-drag laws. This Part posits that anti-drag laws are primarily passed for their expressive effect, and judicial decisions holding the laws unconstitutional do little to remedy the expressive harms generated by the passage of these laws. The expressive effects of anti-drag laws change communal norms, alter behavior, and inflict psychological damage on LGBTQ+ individuals even without the threat of legal sanction.140 Perhaps these harms are unavoidable in a constitutional framework that prizes democracy and local government.141 However, the harms generated by anti-drag laws demonstrate the importance of investing in extrajudicial safeguards for freedom of expression.
Expressive theories of law can be broken into a variety of categories that make a variety of claims — most importantly here, however, is law’s interaction with social norms. Laws do more than create the threat of punishment — they alter or construct community beliefs around morality that lead to changes in behavior. In particular, Professor Richard H. McAdams puts forward an “attitudinal theory of expressive law” that posits that “law changes behavior by signaling the underlying attitudes of a community or society.”142 As an implication of this signaling, “those who observe the signal will update their prior beliefs about public attitudes in the direction of expecting more disapproval for behavior the law condemns.”143 This behavioral effect is lucrative to ideological interest groups who “would prefer to constitute a majority but will settle for creating the appearance of being the majority.”144 And, “on more contested matters, with no clear social consensus, law might be able to leverage its legitimacy to persuade members of the public to change their moral view, thus affecting their behavior.”145 Thus, symbolic legislation, such as anti-drag or anti-cross-dressing laws that may have little legal effect, oftentimes is valuable to political actors for the expressive messages it contains. In this sense, the expressive power of law extends further than deterrence — law not only discourages people from performing a prohibited act, but also suggests to them that the act is viewed undesirably by the majority of the community.146
Consider, for example, a community that decides to impose fines for bicyclists who travel outside of the bike lane. This law communicates three distinct, but overlapping, points of information: first, it instructs the community that legislators collectively believe that it is risky to cycle outside of the bike lane; second, it informs individuals what the rest of their community generally thinks about cycling and bike lanes; and third, if an individual was already cycling within the bike lane or encouraging others to do the same, it lets that individual know that they likely have the approval of their community.147 These datapoints can create additional compliance with legal obligations even without the threat of sanction — thus, a cyclist might stay in the bike lane only to avoid feeling disapproval from their neighbors.148 Assuming that “individuals are concerned with what most people approve, law serves as a signal for the judgment of most people, whose approval individuals seek.”149 In this manner, law is an important tool in shaping the community norms that affect behavior in a given community.
Importantly, expressive theories of law “show their distinctive power in matters concerning expressive harms”150 such as communicative harms. An individual suffers a communicative harm when “she is treated according to principles that communicate negative or inappropriate attitudes toward her — that is, when people treat her in ways that express these attitudes, with the intention of ‘sending a message’ to her regarding their attitudes.”151 While communicative harms are relevant in some areas of law, such as within the Equal Protection or Establishment Clause contexts, our existing legal frameworks quite often do not provide an avenue for litigants to claim an injury (or receive a remedy) for an expressive harm.152 Therefore, when a court sets aside a piece of legislation — say, for violating the First Amendment — the court’s decision removes the legal effect of the statute, but does not seriously abate the law’s conveyed social harms.
Applying an expressive theory of law to anti-drag regulations, a variety of conclusions can be drawn. First, anti-drag laws suggest to individuals that legislators believe that drag performances and deviations from heterosexism are risky. For example, consider Tennessee State Representative Mary Bentley’s statement: “This bill is not about whether drag is acceptable . . . . It’s about whether we should be exposing our children to sexually explicit behavior.”153 Even those who did not directly hear Representative Bentley’s statement might come to the same conclusions about drag’s danger merely from the fact that legislators thought it necessary for regulation. Second, anti-drag laws suggest to community members who may be ambivalent about drag that they too should hold fear of the practice. As Memphis drag queen Bella DuBalle observed, “Business owners see the headlines and automatically assume they can’t continue, and that’s leaving many people jobless.”154 Third, anti-drag legislation tells anti-drag advocates that they are doing the right thing. As discussed in Part II, there is a concerning overlap of vigilantism and anti-LGBTQ+ violence. Anti-drag advocates may believe that they are acting in accordance with the law when preventing a drag performance from occurring, even when a court decision has dictated the opposite conclusion.155
The messages communicated by anti-drag laws inflict quintessential communicative harms against drag performers and members of the LGBTQ+ community. In this manner, they produce a similar effect to anti-cross-dressing regulations156 and sodomy laws.157 While many of these anti-LGBTQ+ laws remained on the books for a longer period than anti-drag regulations likely will, these statutes were rarely enforced but valued for the expressive messages contained within — expressive messages that promote the existence of a heterosexist society.158 In Lawrence v. Texas,159 the Supreme Court explicitly contemplated these harms, writing: “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”160 Matters of sexual and gender identity occur within a zone of privacy that is difficult for the government to regulate with traditional enforcement mechanisms.161 However, expressive laws can penetrate these zones of autonomy by coopting social pressure and community shame.162 Thus, it makes sense that the expressive function of law is often utilized to regulate gender and sexual identity.
The promulgation of heterosexist messages produces direct, tangible harm to queer and transgender communities. LGBTQ+ individuals “who encounter homophobic attitudes experience increases in heart rate, blood pressure and stress hormones, potentially putting them at risk for multiple health problems.”163 And, for LGBTQ+ youth, the effects might even be more intense. Regrettably, research has demonstrated that LGBTQ+ children suffer from “high[er] levels of depression, self-harm, suicidal ideation, and suicide attempts” when they are not given safe places to explore their identities.164 Some observers have explicitly noted that “[r]ecent homophobic and transphobic legislation may also contribute to increased mental health risks” for LGBTQ+ children.165
After applying an attitudinal theory of expressive law, it becomes clear that there exists an inherent mismatch between the remedy currently afforded to litigants challenging anti-drag regulations and the harms they have suffered (and continue to suffer). The expressive harms created by anti-drag laws resemble the harms that ought to be prevented by the First Amendment: the speech of drag performers has been unconstitutionally chilled.166 So even though all anti-drag laws might eventually lose all threats of enforceability, the echoing ripples of their effects on communities will likely persist.
Courts may be ill-equipped to address these expressive harms. To the extent that striking down an anti-drag regulation creates its own positive expressive effect, this effect may be minimal. The negative expressional effect of law is most pronounced at the local level “because most approval and disapproval occur[s] locally, where others observe us.”167 Thus, while a judicial opinion might include ringing language that celebrates the values of drag and the First Amendment, such positive messages are unlikely to counteract the initial harms expressed in the original anti-drag piece of legislation.
While the First Amendment might not offer any unique protections against expressive harms, legislators can, and must, contemplate the morality of passing laws that are “[f]lagrantly [u]nconstitutional”168 to send messages about marginalized groups. In a nation with judicially enforced constitutional minority protections,169 legislators should not weaponize the expressive effects of law to promulgate messages of bigotry and intolerance. Perhaps such expectations are Pollyannaish, and instead, the rebellious speech of marginalized individuals and their allies is central to the art of social change. With the allowance of drag in public spaces, audiences at events like Drag Story Hour can see that drag is not about sexual perversion — it’s about gender.
Conclusion
The recent wave of anti-drag legislation is a frightening reminder of politicians’ willingness to bulldoze over the constitutional rights of marginalized groups when intolerance hijacks the political process. While anti-drag laws show the capacity of law to generate expressive harms, law also has the capacity to generate expressive goods. First, legal protections for LGBTQ+ individuals communicate messages of tolerance and acceptance.170 Second, governments can take steps to send messages of inclusion to all communities by actively celebrating the values of freedom of expression. By providing and safeguarding public spaces for expression, citizens can understand the value of allowing events like Drag Story Hour, even if they themselves would never attend.
Protecting drag is about more than just protecting speech — it’s also about protecting the centuries-long legacy of an almost global art form, a history of political and social rebellion, and most importantly, members of the LGBTQ+ community who refuse to hide.