The anti-drag bills sweeping the U.S. are straight from history's playbook

By Manuela López Restrepo

Published March 6, 2023 at 4:44 PM CST

Participants attend the Nashville Pride parade in June last year, but new legislation has put a question mark over future events.

It turns out that even 150 years ago, legislators wanted to police gender expression in public spaces.

Who are they? LGBTQ Tennesseans. Advocates worry that recently-passed legislation restricting drag performances in public spaces in Tennessee could be used to discriminate against them, and fuel the slew of similar laws being proposed in other states.

The bill that passed in Tennessee last week restricts "adult cabaret performances" in public or in the presence of children, and bans them from occurring within 1,000 feet of schools, public parks, or places of worship.

This was passed alongside separate legislation that bans transgender minors in Tennessee from receiving gender-affirming care like puberty blockers, hormones, and surgery.

As of a month ago, at least 9 GOP-led state legislatures were pushing similar anti-drag bills.

Those found violating the anti-drag law face misdemeanor charges in the first instance, punishable by a fine up to $2,500 and/or up to a year in jail. Those found for subsequent violations face a felony charge, punishable by up to six years in jail.

Want to learn more? Listen to the Consider This episode on how restrictions on drag shows have a history in the U.S.

What's the big deal?

Laws restricting gender expression in public and in private have been around in the U.S. for more than 100 years, with one in New York only just being repealed in 2021.

Critics say the Tennessee bill is so constitutionally vague there is little clarity about what falls under the jurisdiction of the ban, making business owners, performers and others uncertain of what could come next.

Others say the laws will be used to target queer Tennesseans everywhere: "It's ... this subtle and sinister way to further criminalize just being trans," ACLU of Tennessee's Henry Seaton told NPR earlier this month.

Tennessee Senate Majority Leader Jack Johnson, the drafter of the state's drag show bill, told NPR in a statement, "Just as current law prohibits strip clubs from admitting children, this legislation would also prohibit sexually suggestive drag shows from being performed on public property, or on any non-age-restricted private property where a minor could be present."

Advocates who oppose a bill that would restrict where certain drag shows could take place march in Nashville.

What are people saying?

Jules Gill-Peterson, a historian and professor at Johns Hopkins University, studies transgender history and the history of sexuality. She spoke with NPR's Ari Shapiro to highlight the history behind these types of laws.

On the precedent set before these laws:

Unlike a lot of other anti-LGBT legislation that doesn't really have any precedent, we actually have almost 150 years worth of laws in this kind of zone.

In 1863, San Francisco was actually the very first place to enact a ban, what it called a cross-dressing or masquerade ordinance, which prohibited someone from being out in public if they were wearing clothing that was different from their sort of legal sex or assigned sex. And those kinds of laws really took off in the late 19th century.

They were really used for many decades, well into the 20th century to imperil and harass, but also silence LGBT people. Because if you were arrested, which was so easy under the way these laws were written, your name might be published in the newspaper, you'd have a criminal record. It could really ruin your employment chances and out you to everyone.

On whether first amendment rights were brought up with these previous laws:

As far as I know, that question was never really settled under the law. In some ways, the question with these sorts of status offenses, or these laws that target how people appear or what they wear, is that they're so vaguely worded, that so much comes down to how they're implemented. It's much more a matter of policing than it is the letter of the law.

On what enforcement could look like, particularly at pride events in Tennessee this summer:

The notion that police might arrive at pride and start arresting drag queens, or frankly, anyone who could be dressed in a costume, and because there could be children in the crowd, is really, kind of an incredible thing to imagine happening.

But I think this is the sort of uncertainty of how these laws are written. I'm not totally sure Tennessee's law would necessarily allow the police to take that action, but certainly some of the other laws being considered in other states definitely would.

And so the question is, what is going to be the newfound danger that folks are going to face at a popular family friendly event like Pride? I think that just goes to show how far the reach and the scope of some of these laws really can be that they're reaching into, and allowing the government to exercise a really powerful degree of authority in determining what you're allowed to wear, where you're allowed to be in public, and frankly, how you're allowed to exist when you're walking down the street.

So, what now?

North Dakota recently advanced similar legislation to Tennessee, with other bills also introduced in Texas, West Virginia, Nebraska, and South Carolina.

Gill-Peterson says that while these new laws may be a painful reminder of what existing while LGBTQ in this country has been like, there is power in knowing how they can be fought: "They have been repealed before. That reminds us that no matter what kinds of legislation are being passed today and how cruel or devastating the impact is, these aren't foregone conclusions."

Critics say Tennessee's public drag show ban hurts the entire state's LGBTQ community

Parents raise concerns as Florida bans gender-affirming care for trans kids