Montana Gov. Greg Gianforte signed legislation this week that bans drag story hours in public schools and libraries and restricts “sexually oriented performances” on public property, likely setting the stage for another legal challenge to GOP-backed legislation restricting LGBTQ+ expression.
House Bill 359, sponsored by Rep. Braxton Mitchell, R-Columbia Falls, became law with Gianforte’s signature Monday.
“The governor believes it’s wildly inappropriate for little kids, especially preschoolers and kids in elementary school, to be exposed to highly sexualized content,” Kaitlin Price, a spokesperson for Gianforte, told Montana Free Press in an email Tuesday.
That line echoes arguments lawmakers made for the bill and others like it during the recently concluded session — Mitchell suggested that drag story hours and other family-oriented drag performances were part of a “sick agenda” and “damaging to a child’s psychology and general welfare.” Mitchell could not be reached for comment in time for publication Tuesday.
Drag performers, advocates and other opponents said the bill’s backers willfully misunderstand the nature of drag performances at a time when the LGBTQ+ community is already under attack by state legislators. In addition to HB 359, Republicans this session passed Senate Bill 99, which bans gender-affirming care for transgender youth, Senate Bill 458, which inserts binary definitions of sex into state law, and several other similar bills.
“We have white [cisgender] individuals that have zero experience within the drag community providing a legally binding definition of what drag art is, and I think I speak for the community when I say that is hurtful, degrading, and it’s a misunderstanding,” said Bozeman drag performer Anita Shadow.
“One of the big things is that there seems to be a complete misunderstanding that drag is inherently sexual — and that is not the case,” Shadow said.
Upper Seven Law, a non-profit law firm involved in several lawsuits related to new legislation, has pledged to challenge HB 359.
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Drag ban bill for public places, schools and libraries moves through Legislature
Republicans in Montana’s House of Representatives gave initial approval Thursday to a bill banning drag performances in public schools, libraries and public properties “in any location” when a minor is present, legislation blasted by LGBTQ people as hateful and misinformed but welcomed by conservative parental rights groups.
“This is a really straightforward First Amendment activity,” Rylee Sommers-Flanagan, the firm’s executive director, told MTFP. “There’s nothing obscene about dressing in drag. The First Amendment allows reasonable restrictions on speech, but this isn’t it.”
Similar drag bills in other states have also faced lawsuits, but supporters of HB 359 maintain that the bill’s focus on publicly funded facilities sets it apart from legislation elsewhere.
The version of the law that reached Gianforte’s desk is less explicit about the types of expression it’s targeting than it was at its introduction. Initially, HB 359 specifically banned drag performances in public schools, libraries and public properties “in any location” when a minor is present, but underwent a series of amendments during the final days of the session that broadened its focus.
These amendments included new language from Sen. Chris Friedel, R-Billings, that removed any reference to drag in favor of the term “adult-oriented.”
“I can tell you right now, if that bill goes [in its current form] even the most conservative judge will strike it down for unconstitutionality,” Friedel told his colleagues in April. “The reason I brought this amendment today is to make sure that we get this across the aisle, we get this in front of the governor, he signs it, it goes to court and it can be defended by the [Montana attorney general’s] office.”
Friedel’s amendment passed the Senate on bipartisan lines. But the vote to support the amendment in the House came just after protests in support of Rep. Zooey Zephyr, a transgender woman and Missoula Democrat, erupted in the House gallery. Despite relatively broad GOP support for the amendment in the Senate, almost every House Republican voted against the new language.
A subcommittee of House and Senate lawmakers then met to reconcile the different versions. The language they landed on has a few operative provisions, namely an explicit ban on drag story hours at “a school or library that receives any form of funding from the state” during regular operating hours or at school-sanctioned events. The bill ultimately passed on May 2, the last day of the 68th Legislature, on mostly party lines.
To support those restrictions, the law introduces definitions of drag queen and drag king into state statute. Critics have attacked those definitions as vague and subjective.
A drag queen, under the law, is “a male or female performer who adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.”
The law also says that “a sexually oriented business may not allow a person under 18 years of age to enter the premises of the business during a sexually oriented performance” and further prohibits a “sexually oriented activity” in any public space where someone under the age of 18 is present.
Shadow, the drag performer, described story hours as akin to “taking your kid to meet Cinderella at Disneyland,” not an expression of prurience. Performers in Shadow’s organization follow strict requirements for dress and language when performing for kids, she said.
“If you have a caterer that is working with an older crowd that has lots of money, they may bring caviar,” Shadow said. “If you’re working with a youth group for a birthday party, they’re probably bringing pizza. They’re catering to the crowd they’re going to.”
Gianforte’s signing of the bill comes as Pride Month approaches in June. Kevin Hamm, the president of Montana Pride — and a recently announced Democratic candidate for Montana’s eastern U.S. House district — said he doesn’t expect the law will hamper the festivities.
“We have tons of events planned, many featuring drag,” Hamm said. “Knowing how resilient and energized this community is in the face of adversity, I suspect that this nonsense will inspire even more people to show up as their authentic selves in drag or genderqueer outfits. Our community refuses to be pushed back into the closet by a small minority of ignorant but very vocal bigots, and this bill does nothing to change that.”
Shadow, who helped produce Bozeman’s own Pride event last week, said much of the same, but also noted the fear that many in the drag and LGBTQ+ community feel in the context of HB 359 and similar legislation. For example, white supremacist protesters interrupted a Pride event in Bozeman this weekend holding signs that said, among other phrases, “Boycott your local safe space.” Events she’s involved with often require security, law enforcement and other heightened measures to prevent violence and harassment, Shadow said.
“Nationally speaking but also in Montana, the queer community is under attack,” she said.
Disclosure: Kevin Hamm is COO of Treasure State Internet, an in-kind supporter of Montana Free Press.
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