Drag artists in Montana can perform without worry — for now.
A federal judge ordered Montana’s drag ban bill be temporarily enjoined on Friday, according to court filings.
Judge Brian Morris said in his conclusion House Bill 359, which banned drag performances on public property in view of minors, targeted protected speech and expression.
“No evidence before the court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms,” Morris said. “H.B. 359’s terms prove vague and overbroad, chilling protected speech and creating a risk of disproportionate enforcement against trans, Two-Spirit, and gender nonconforming people.”
Plaintiffs from around the state challenged, in part, the constitutionality of HB 359, sponsored by Rep. Braxton Mitchell, R-Columbia Falls, and signed into law by Gov. Greg Gianforte in May.
State argued drag ban protects minors from sexual acts
In court, the state argued that the ban on drag in public spaces falls within its obligation to protect minors, while the attorney for plaintiffs said that the state already has definitions and mechanisms in place to protect minors from obscene materials and the law is unconstitutional.
Morris cited false claims about drag performances and story hours made by legislators as the bill made its way through both chambers, as well as the amendments made to the bill throughout as part of his opinion on the merits of plaintiff’s request for an injunction.
“Rep. Mitchell, Sen. Glimm, Rep. Regier, and Sen. Molnar repeated arguments that ‘there’s no such thing as a family-friendly drag show,’ that drag performers are ‘hyper-sexualized,’ that opponents to the bill were pushing ‘a sick agenda,’ that ‘[d]rag shows are damaging to a child’s psychology and general welfare,’ and that drag shows constitute ‘sickening examples’ of the hyper-sexualization of children,” the opinion read.
Morris noted the amendment process the bill went through, including the “Friedel amendment” brought by Sen. Chris Friedel, R-Billings, which would have replaced references to drag with “adult-oriented performance,” and removed the requirement that it be “obscene.”
But when state Sen. Carl Glimm, R-Kila, who carried the bill in the Senate, objected to the amendment, saying “completely guts the bill,” the motion was doomed and it failed to pass.
Judge says Montana Legislature didn’t take Miller obscenity test into account when drafting law
“H.B. 359’s amendment process reflects a continuing focus on restricting the speech and expression of drag performers and gender non-conforming people,” Morris wrote.
Morris noted the Legislature omitted the Miller test in the bill, the U.S. Supreme Court’s legal test for obscenity. And, though lawmakers edited out the legal test, the federal judge noted they explicitly stated their intentions of targeted and restricting a certain type of speech.
“The Legislature removed references to drag in response to concerns about constitutionality. The Legislature later restored the references in a subsequent version of the bill after Rep. Mitchell and other supporters expressed concerns that the amendment would preclude H.B. 359’s application to drag performances and drag story hours and thereby had ‘completely derailed’ the bill’s purpose,” the opinion read. “Sponsor Rep. Mitchell uniformly described the purpose of the law as restricting drag story hours and performances.”
State attorneys’ request for a jury trial was denied in this order. However, Defendant J.P. Gallagher, the Butte official who canceled transgender woman Adria Jawort’s talk at the public library in Butte citing the law, is entitled to a jury trial.
The dozen plaintiffs include Rachel Corcoran, a Billings public school teacher who sometimes dresses up as characters of the opposite sex for lessons, Montana Book Company, which hosts drag story hours, among others.
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