Five ways you could get in trouble under the Texas anti-drag show bill
AUSTIN — Miley Cyrus. Bachelorette parties. Gay Pride parades.
What do these things have in common? They all could be penalized under an anti-drag bill the Texas Senate passed this month, according to attorneys who reviewed the legislation.
Senate Bill 12 is pitched as a way to protect kids from being exposed to drag shows. Its author, Mineola GOP Sen. Bryan Hughes, says these performances “are sexually explicit and expose children to issues of sexuality and identity that should be reserved for adults.”
The attorneys say Hughes’ legislation goes far beyond drag. It would, they said, criminalize a slew of commonplace behaviors by adults not in drag — whether or not kids are around. Dirty dancing, groping (real or pretend) and “exhibiting” a sex toy could all become crimes under the bill, the attorneys explained.
Three things would have to be true to fall afoul if this becomes law:
- You have to be doing something that the statute defines as either “sexual conduct or “sexually oriented performance,”
- a minor is present or you have to be on “public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child,” and
- the behavior must be “prurient.” According to Hughes, “prurient” means “the extreme interest in sex.”
If you meet these criteria, you could get jailed for up to a year, hit with a $4,000 fine, or both. Businesses who put up with such behavior could draw a $10,000 civil penalty. Enforcement would be up to local prosecutors, meaning whether or not you get arrested would depend on the decisions of law enforcement where the alleged crime took place, and the state’s attorney general.
We asked three attorneys who specialize in government regulation and constitutional law to look at the bill: David Coale of Dallas, William X. King of Houston and University of North Texas at Dallas College of Law professor Brian Owsley. Here are some of the examples of behavior that might go from “go go” to “no-no” if this bill becomes law, according to the attorneys.
The bill lays out four definitions of “sexual conduct,” including “actual or simulated” contact with another person’s butt, breast or genitals and “actual or simulated” sexual acts.
Performers could get in trouble if they pretended to grab the backside or simulated some other sexual act with someone else on stage, the lawyers said. If a kid is around, or the performance is on public property in a place that could conceivably be seen by a minor, the bill penalties could be triggered.
Madonna, who is about to embark on her 40th anniversary tour, and Miley Cyrus came up in debate on the bill. Hughes was asked whether performances like theirs might run afoul of the law, to which he responded, only if they were “prurient” in nature. When questioned a second time about Cyrus performing at a government-owned facility, he said he did not think his bill would apply to that hypothetical.
Coale said a prosecutor might come after provocative dancing by audience members caught on the big screen or in viral videos because the term “performer” is not defined in the bill.
Think of the viral video of the couple dancing closely at the recent Taylor Swift concert in Arlington.
Bachelorette partygoers could also get in trouble, Owsley said.
That’s because the bill includes “the exhibition” of sex toys in its definition of sexual conduct. The “representation” of genitals “in a lewd state” is a no-no. Without a definition of “performer,” he said this could apply to anyone, especially those on public property.
“It potentially catches up the abortion protesters wearing the vagina hat or the bachelorette party wearing the dildo hats,” said Owsley, who teaches torts and constitutional law.
State law already includes motion pictures in its definition of “performance,” so the lawyers said the bill’s penalties could apply to screening a movie in front of minors that depicts any of the prohibited behavior. The bill does not explicitly say the performances must be live.
Think Anchorman, which shows the lead character Ron Burgundy in a state of arousal, or the infamous baked goods scene in American Pie.
“It’s conceivable. It really depends on how far an enforcement official would want to push the boundaries of the law,” said King, who litigates constitutional and regulatory overreach cases.
The actors may not be penalized, since they wouldn’t be present for the screenings. But the venue that shows the movie in front of minors might get hit with a fine — even if a parent consents to their child being there, said Coale.
Owsley wondered whether parents who consent to their kids seeing a PG-13 or R-rated movie with this content could also be targeted for abuse or child endangerment. He reiterated that enforcement of the criminal penalties would depend on the local police and prosecutor.
“Think of rural Texas vs. Austin. Those are two different places, that sort of two different sensibilities,” Owsley said.
Coale worries academics and art could be penalized.
Courts have ruled that to be considered obscene, art must lack serious literary, artistic, political or scientific value. But the legislation includes no exception.
If a college professor is teaching a class on anatomy or hygiene or art, could they get swept up into this, Coale asked. Who determines where the line is between an academic pursuit and a “prurient” display? What would happen if a college student brought their children into class on a day when they were shown nude artwork or avant garde choreography?
Think Baz Luhrman’s PG-13 rated movie Romeo + Juliet, released in 1996 and starring Leonardo DiCaprio and Claire Danes. Romeo’s buddy Mercutio, played by Harold Perrineau, shows up to the Capulet’s ball dressed in drag and proceeds to lip sync to Candi Stanton’s “Young Hearts Run Free” while dancing and thrusting his hips.
Does the thrusting count as a simulated sex act?
“A completely legal, mass-market movie, shown to try to help high school kids get excited about Shakespeare, becomes a crime under that bill,” Coale said.
LGBTQ people and performers, including Pride parades, would be imperiled by this legislation, the lawyers agreed.
The bill targets people “exhibiting” as the opposite sex through clothing, makeup “or other physical markers” and who sing, lip sync, dance or perform in any other way in front of an audience. If that person is doing so in a prurient way, the bill considers it a “sexually oriented performance” that is not appropriate in front of minors.
If the performance is in a public place, as parades and other Pride events often are, a performer could be arrested even if a child isn’t around — as long it’s “reasonably” assumed that a child could happen upon the scene.
King said the bill, if it becomes law, would “shut down any Pride parade you ever have.”
Owsley said transgender people would be especially vulnerable, even if they are not performing drag. Would a trans person performing karaoke get into trouble if they were thought to make a lewd gesture in front of a minor, he wondered? Would transgender and nonbinary singers like Kim Petras and Sam Smith be under heightened scrutiny?
“Is that person going to be targeted, you know, pursuant to this type of statute?” Owsley said. “I would imagine you might find that person expressing some concern about these types of laws.”