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Politicians have never needed precise laws to brutally police who can and cannot exist freely in public.
Drag artist Vidalia Anne Gentry speaks during a news conference held by the Human Rights Campaign to draw attention to anti-drag bills in the Tennessee legislature, on Feb. 14, 2023 in Nashville, Tenn.
Photo: John Amis/AP
Across the United States, Republican lawmakers are intensifying their ongoing, all-out assault on trans existence. More than 300 anti-LGBTQ+ bills were either passed or introduced in 2022, the majority taking aim at trans youth through health care bans, sports team restrictions, and bathroom bills, and removing Medicaid coverage for trans adults’ health care too.
Meanwhile, drag performances, particularly family-friendly drag brunches and drag queen story hours at libraries, have become a focal point of histrionic Republican rhetoric and far-right militia attacks.
With obsessive ferocity, the right is attempting to criminalize, harass, and legislate gender nonconformity out of existence. Tennessee has taken a step forward in this goal with the recent passage of companion bills targeting drag shows, which, contrary to most media reports, do not actually ban anything that wasn’t already illegal.
The anti-drag law still serves a profoundly sinister political purpose: inviting further law enforcement and public harassment of drag performers and trans people more broadly. This is a real, material threat that must not be underestimated. Yet reporting that the law newly criminalizes drag performances overlooks the ways that certain trans and other gender-nonconforming people are already policed and treated as criminal without the need for new laws.
Almost all news coverage has stated the Tennessee law will prohibit drag performances in public and in front of children, which could also criminalize trans people for simply being in public at all. This was the desire of the lawmakers who originally proposed the law. The version that Tennessee Gov. Bill Lee is expected to sign, however, does not make drag performances illegal outright. Attempts to ban drag performances altogether were such a patent violation of the First Amendment that lawmakers added revisions in a scramble to ensure that the bills could pass the state Legislature at all.
According to the new law, then, drag performances will be banned if and only if they are shown to be “harmful to minors,” according to existing statutes that place a high bar on what counts as “harm,” including knowingly creating an imminent risk to a child’s safety via things like “excess violence” or “sadomasochistic abuse.” Drag queen story hours would not pass muster.
Though the law is superfluous on the books, it is not meaningless. There is no doubt that the anti-drag law and others like it, proposed in at least eight other states, aim to chill gender-nonconforming people out of the public sphere. The laws’ implications, that drag performances should be considered potential sites of obscenity and harm to children, perniciously reinforce now well-established lines of Republican anti-LGBTQ+ fearmongering. It is emblematic of the Republican gender obsession that politicians would push through an emptied-out law, as long as it’s legible to the public as a threat to trans existence.
Chase Strangio has been on the front lines of legal battles over these eliminationist laws as the American Civil Liberties Union’s deputy director for transgender justice. He was keen to clarify last week on social media that reporting on the Tennessee law has overstated what it actually prohibits, in light of the recently added amendments. “Current law is already being weaponized to target trans people, pride and drag. But I don’t think it is accurate to say that most drag would meet the strict obscenity test,” tweeted Strangio. “We need to be informed and accurate.”
Strangio told me that he sees these particular laws as “political theater.” This was a case, he said, of Republicans “performing disgust and outrage,” adding, “They don’t even know what drag is. Not one of these bills actually name drag queen story hours.” He noted that this sort of lawmaking is nonetheless an “iterative process” and that future anti-drag bills could well go further.
Anti-trans legislation is growing more radical by the day: A bill moving at pace through the Arkansas legislature, for example, would make it a criminal offense of “sexual indecency with a child” for a trans person to enter a bathroom if there is a minor inside. The law would constitute a ban on all trans adults using bathrooms in public.
Strangio is not one to downplay the unrelenting, existential threat of the Republican assault on trans and other gender-nonconforming people, as bill after bill in state after state is proposed and passed at breakneck speed. “I’ve never experienced anything like it,” he told me.
There is a risk, however, in treating every new headline-grabbing law as an unprecedented, watershed moment. Such an approach can intensify the law’s chilling effect. It also does no justice to the trans people who have already long been treated as a priori criminals or for the trans youth who have never had support or access to the care they need.
Right-wing narratives, aided by suspicion-drenched pieces in venues like the New York Times, project the false notion that prior to these new laws and regulations, trans people have been allowed to publicly flourish and gain ready access to the sort of abundant resources and health care unavailable to the majority of U.S. residents. The opposite is true, especially, of course, for poor trans people of color.
“Law enforcement already feels very empowered to police gender, with the extralegal support of groups like the Proud Boys, turning up heavily armed,” Strangio told me. He is not even convinced that police in Tennessee will rely on the new anti-drag law in making arrests. “The police force doesn’t need a new statutory hook beyond what it already has.”
News of the law provoked understandable fear that trans people would face criminal charges for simply existing. But when it comes to the arrests of trans people for no more than being trans in public, this has been the established reality for many poor trans women of color, profiled constantly by police in a practice that is hardly confined to red states.
It was only in 2021, after years of organizing and advocacy led by trans women of color, that the state of New York repealed its anti-loitering statute, which was widely known as the law against “walking while trans” due to the consistency with which cops would harass and arrest trans women as presumed sex workers, simply for being trans and standing on a given street.
Such harassment continues, since police continue to target sex workers, who are disproportionately trans women of color, given the widespread discrimination they face in other industries. I raise this blue state example because any struggle against the vile Republican attacks on gender nonconformity must not be limited to a defense of those drag performers or trans people framed as most palatable by liberal middle-class social standards. When lawmakers invite more policing and social exclusion toward a marginalized community, we must be attentive to the parts of that community already exposed to the worst aspects of existing practices of policing and socioeconomic marginalization.
In an excellent response to the Tennessee anti-drag law, historian Jules Gill-Peterson wrote that “we might expect that the application of the law will reflect the history of American policing, about which we already know a great deal. It’s likely that low wage nightlife performers, like dancers, drag queens, and sex workers will experience an intensification of policing from forces already long practiced at pursuing them.” She added that “the class impact of anti-trans legislation is their substance. These laws don’t target identity directly, they go after the means of living a life with any degree of mobility.”
It’s no accident, as Gill-Peterson notes, that “such laws will never target straight people’s many drag rituals.” On Monday, Idaho Family Policy Center President Blaine Conzatti presented an anti-drag bill to the House State Affairs Committee and explicitly noted, “We are not talking about humorous, gender-bending roles in Shakespearean theater. We are not talking about cheerleading performances at high school football games. We are talking about live performances that involve sexual conduct.”
This might seem like grounds for that classic liberal retort: “Hypocrisy!” Lee, the Tennessee governor, faced this exact accusation when presented with an old photo of himself as a youth, dressed in drag as a cheerleader, while ready to sign the anti-drag law. Yet such a hypocrisy charge pretends that the right has not always been violently selective in its policing of gender, its determinations of what does and does not count as “perversity,” and its decisions around who is targeted to suffer under laws of reaction. How successful, after all, have charges of hypocrisy been against lawmakers who push racist tough-on-crime drug laws but are exposed as occasional cocaine dabblers?
It is of limited use to call anti-trans laws inconsistent or, like the Tennessee anti-drag law, incoherent. The far right is not bumbling into accidentally criminalizing Shakespeare. It has a long-practiced history of enforcing laws to determine who can and cannot exist freely in public — a history that has never relied on careful and precise lawmaking proposals.
We can and must fight against the raging right-wing efforts to paint any gender variance as “prurient” and “obscene,” including something as joyful as drag story hour. But our defense — indeed, celebration — of gender nonconformity must not be limited to examples that are family friendly and polite.
The only response must be to create and insist upon public spaces exempt from policing, where trans people and gender-nonconforming people are not only tolerated or entertained as child-friendly performers, but also embraced and enabled to flourish without the demands of respectability. This is a question of resources, as it is for all our ability to flourish, and not only laws. Such spaces will not be easily won.