Federal judge blocks Montana’s anti-drag ban

LGBT+ advocates have condemned the sweeping law as a ‘calculated attack’

Alex Woodward
Friday 28 July 2023 23:09 BST
Related video: Montana trans lawmaker speaks out against gender-affirming care ban

A federal judge in Montana has temporarily blocked enforcement of a sweeping state law against drag performances days before one of the biggest Pride events in the state begins.

The temporary restraining order from US District Judge Brian Morris, who was appointed to the court by Barack Obama, argues that the law is undeniably an unconstitutional threat to speech that will “disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms,” including transgender and Two-Spirit people.

“Constitutional violations, moreover, never serve the public interest,” he wrote in the filing on 28 July.

Montana’s law “appears to suffer from similar ‘constitutional maladies’” as similar drag bans that were also overturned in federal courts in Florida and Tennessee, according to Judge Morris.

“Chilled speech” and exposure to potential criminal liability under the law could imperil thousands of Montana residents celebrating Pride throughout the state in coming days without an order to block it, he wrote.

The order – issued two days before Helena’s Pride celebrates its 30th anniversary – follows a lawsuit from a group of LGBT+ advocates and a transgender woman who appears to be the first person targeted by the law, which plaintiffs called “a Frankenstein’s monster” and a “calculated” attack on LGBT+ people that “overshoots this sinister mark” and “threatens teachers, artists, small businesses, and cultural and scientific institutions with criminal and professional sanctions.”

The challengers include a public school teacher who uses colorful costumes in her lessons and a nonprofit group that advocates for LGBT+ people and drag performances. Pride organisers, several community centres, a brewery and a fitness studio also joined the challenge, which alleges that the law unconstitutionally targets “personal, artistic and political expression and speech.”

The law specifically bans drag story hours and drag performances on publicly funded property and opens public employees to threats of criminal liability. It prohibits anyone from performing in public in “exaggerated makeup” and with a “flamboyant or parodic” persona with “glamorous exaggerated costumes”.

“As I said throughout the legislature, drag is art,” said Montana state Rep Zooey Zephyr, whose opposition to Republican-backed legislation against LGBT+ people this year prompted sanctions from GOP lawmakers.

“And drag bans not only infringe on free speech, but they are crafted (by design) to be so broad to allow for discrimination against trans [and] nonbinary people as well,” she added.

The order follows several federal court rulings that have struck down similar laws and laws that target gender-affirming care in other states, as the battle for LGBT+ rights extends from volatile state legislative sessions into state and federal courtrooms.

Hundreds of bills aimed at LGBT+ people, particularly young trans people, have been filed in nearly every state within the last several years, parallel to a growing number of protests and threats of violence aimed at drag performers and the people and places that support them.

From June 2022 to May 2023, protests and threats of violence against drag performers accelerated across the US, according to a recent report from the Institute for Strategic Dialogue.

The report discovered 203 on- and offline threatening incidents within the last year, nearly half of which targeted drag queen story hours in libraries and bookstores. Other incidents targeted drag shows, drag brunches and drag bingo games.

Proud Boys chapters targeted 60 such events, with more than half resulting in physical and verbal clashes, the report found.

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