Anatheia Smith, a Montana drag performer, testifies to the House Judiciary Committee against House Bill 359 on Feb. 9, 2023. Credit: Eliza Anderson Wiley / MTFP

A federal judge Friday extended his block on a Montana law that seeks to ban drag story hours in public schools and libraries, saying state attorneys haven’t proven that the events are harmful to children and that the law is written too vaguely.

U.S. District Court Judge Brian Morris also said the law, which passed this year’s Montana Legislature as House Bill 359, chills free speech protected by the First Amendment.

The law, Morris wrote in an order, “targets protected speech and expression. The statutory text and legislative history evince anti-LGBTQ+ animus. No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms.”

He continued that the bill’s provisions “prove vague and overbroad, chilling protected speech and creating a risk of disproportionate enforcement against trans, Two-Spirit, and gender nonconforming people.”

The law was passed by the Legislature with support from most Republicans and united opposition from Democrats, then signed by Gov. Greg Gianforte, a Republican, in May. 

Proponents, including bill sponsor Rep. Braxton Mitchell, R-Columbia Falls, said they were trying to shield Montana children from what they consider sexually charged performances. During legislative proceedings, Mitchell suggested that drag story hours and other drag performances promoted as family-friendly are part of a “sick agenda” and “damaging to a child’s psychology and general welfare.”

Drag performers, advocates and other opponents said the bill’s backers willfully misunderstood the nature of drag performances. The law was subsequently challenged in court by plaintiffs including businesses, individuals, arts organizations and LGBTQ+ community groups. Those plaintiffs are being represented by Upper Seven Law, a Helena-based progressive nonprofit law firm.

Morris previously issued what’s known as a temporary restraining order in late July, blocking the law on an emergency basis days before the annual Montana Pride celebration was scheduled in Helena.

“The statutory text and legislative history evince anti-LGBTQ+ animus. No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms.”

U.S. District Court Judge Brian Morris

The new order, granting a motion for preliminary injunction, represents an early-litigation determination about whether the plaintiffs’ case is strong enough to justify continuing to block the law while litigation continues. As such, Friday’s decision extends the hold keeping the ban from taking effect, but doesn’t represent a final ruling in the case.

Both orders bar Attorney General Austin Knudsen and Montana Superintendent of Public Instruction Elsie Arntzen from enforcing the ban.

Knudsen’s office noted Friday that the litigation will continue.

“This is a preliminary matter at this point,” Department of Justice Press Secretary Emily Flower said in a brief email. “We look forward to presenting the complete factual and legal argument to defend the law and protect minors from sexually oriented performances.”

The attorney general’s office didn’t say Friday whether it intends to appeal the order to the 9th Circuit Court of Appeals. Similar laws passed by Tennessee and Florida have been blocked in federal courts.

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Eric came to journalism in a roundabout way after studying engineering at Montana State University in Bozeman (credit, or blame, for his career direction rests with the campus's student newspaper, the Exponent). He has worked as a professional journalist in Montana since 2013, with stints at the Great Falls Tribune, Bozeman Daily Chronicle, and Solutions Journalism Network before joining the Montana Free Press newsroom in Helena full time in 2019.