How can this new ban on drag possibly be considered constitutional?

Question

This seems impossibly ridiculous.

How do they define, specifically, what it means to be dressed in drag? Let's say we are clear on whether someone is male or not; now, what does it mean, specifically, to wear female clothing?

Frilly? There are men's blouses that are frilly.

Unbifurcated bottom garment? What about some traditional dress from a variety of places, such as a sarong, kilt, abaya, or thoub?

If the Pope visits Tennessee, will he be deemed guilty of dressing in drag?

Will women wearing slacks be deemed guilty of dressing in drag?

I cannot possibly see how any meaningful legal specificity can be in such a law and for it to possibly be constitutional.

Answer 1

Theoretically, the law would be constitutional because the Supreme Court has ruled that states can limit obscenity without violating the First Amendment, and the eyes of the Tennessee lawmakers, drag is obscene:

"Adult cabaret performance" means a performance in a location other than an adult cabaret that features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest, or similar entertainers, regardless of whether or not performed for consideration...

The "prurient interest" line is important. That exact language is taken from the Miller test, laid down by the Supreme Court to govern what is and is not "obscene."

1. whether the average person, applying contemporary "community standards," would find that the work, taken as a whole, appeals to the prurient interest;

2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion);

3. and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I say "theoretically," because you are correct that this could certainly be struck down in court if judges rule that drag does not appeal to prurient interests, does have artistic value, etc. But you asked how it would possibly be considered constitutional, and there's your answer.

Answer 2

I won't try to answer whether the law is constitutional as that's not a subject I am well versed in, and has been addressed by others.

Note: Tennessee law allows "adult entertainment". But this amendment has tightened it down to where some of them can be performed. The amendment specifically bars it from public property and locations that may allow minors easy access:

Obscenity and Pornography - As introduced, creates an offense for a person who engages in an adult cabaret performance on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult. - Amends TCA Title 7, Chapter 51, Part 14.

What does the amended law say?

AMENDMENT #1 rewrites this bill and creates an offense for a person who engages in adult cabaret entertainment on public property or in a location where the adult cabaret entertainment could be viewed by a person who is not an adult. This amendment defines "adult cabaret entertainment" as adult-oriented performances that are harmful to minors, as such term is defined under present law; feature go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; and include a single performance or multiple performances by an entertainer. An "entertainer" means a person who provides:

(1) Entertainment within an adult-oriented establishment, regardless of whether a fee is charged or accepted for entertainment and regardless of whether entertainment is provided as an employee, escort, or an independent contractor; or

(2) Adult cabaret entertainment, regardless of whether a fee is charged or accepted for entertainment and regardless of whether entertainment is provided as an employee or an independent contractor.

Present law defines "harmful to minors" as that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse when the matter or performance:

(1) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful, or morbid interests of minors;

(2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and

(3) Taken as a whole lacks serious literary, artistic, political, or scientific values for minors.

How do they define, specifically, what it means to be dressed in drag?

They don't. They instead focus more on the behaviour of adult entertainers - of a "male or female impersonators" performing outside a permitted environment, that maybe accessible to minors, for a very specific purpose (adult entertainment).

Let's say we're clear on whether someone is male or not, now what does it mean, specifically, what female clothing is?

That is irrelevant as the law specifies that it only applies to an adult entertainer impersonating the opposite gender, behaving in a sexually suggestive manner, as part of some adult performance, outside of a permitted avenue that may be accessible to minors. A prosecutor trying to prosecute a man who dressed in an obvious women's clothing will still need to prove that the accused is an adult entertainer, was trying to impersonate a women in a sexually suggestive manner to arouse the public sexually as part of some public adult performance (outside those permitted by law), without any regards to minors who may have been easily exposed to his act.

But yes, the law has enough ambiguity that can allow multiple interpretations about a situation that can be easy to misrepresent to a jury.

If the pope visits Tennessee, will he be deemed guilty of dressing in drag?

No. Not unless he suddenly claims to be an adult entertainer and also pretends to be a female while doing something sexually suggestive in a public place where adult entertainment are prohibited, to sexually arouse the public disregarding if minors can see his act.

Will women wearing slacks be deemed guilty of dressing in drag?

No. Not unless they claim to be adult entertainers while pretending to be a man and doing something sexually suggestive in a public place where adult entertainment are prohibited, to sexually arouse the public while disregarding if minors can see their act.

I can't possibly see how any meaningful legal specificity can be in such a law and for it to possibly be constitutional.

Even if the law is flawed, the amendment and final version of it does provide a thin shield to protect it from judicial review - that it is a law to protect minors from exposure to pornographic acts accessible to adults. And it also provide a big stick to politically attack those who oppose it - namely, it allows casting aspersions on those who oppose the law as suspected paedophiles who don't seem to care about the well-being of children the law attempts to protect.

Note though that in a good judicial system, ambiguous laws tend to get defined more and more narrowly, and thus the set of judicial precedents on the law tend to dictate more how it is enforced in the court, than based on the original letter of the law. Also, ambiguous laws tend to be easier to kick to a higher court for a judicial review.

Answer 3

People, including the media, are misrepresenting the law to make it more troubling than it really is. The law concerns

topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest, or similar entertainers

The phrase "male or female impersonators who provide entertainment that appeals to a prurient interest" does not apply to male or female impersonators who provide entertainment that does not appeal to a prurient interest (much less to those who are not providing entertainment). As noted by the legal director of the ACLU of Tennessee in the article linked in the question, "drag performances are not inherently obscene." Drag performances that aren't obscene are not affected by the law.

Another element of the law that media reports are failing to emphasize (and sometimes ignoring altogether) is that it does not apply to performances given in a venue that is dedicated to such performances. It only applies to performances in public and to performances in private places where children may be able to see them.