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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.

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    Drag [shows] ... in public venues and "performances in private places where children may be able to see them." It is not illegal to (dress in drag) wear w/e you want in public as long as it covers what it has to by law.
    – Mazura
    Commented Mar 4, 2023 at 21:52
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    This question belongs on Law SE.
    – user76284
    Commented Mar 5, 2023 at 3:46
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    The question is not about what the law says or means but rather if it's conditional. This is quite political. There must be hundreds of questions about constitutionality of things here. Commented Mar 5, 2023 at 8:35
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    @Trilarion Whether a statute is unconstitutional is a legal question, not political. It may not be a question about what the statute says or means, but it is a question about what the constitution says or means with respect to the statute, and the constitution is a law. To the extent that this question is on topic here (which I agree that it is) it's because of the political questions relating to the law, its legislative history, its political implications, and so on.
    – phoog
    Commented Mar 5, 2023 at 23:38
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    Here is the bill. Please add a link to the bill: wapp.capitol.tn.gov/apps/BillInfo/… Commented Mar 7, 2023 at 17:58

3 Answers 3

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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.

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    +1 but courts could also leave this on the books but reject most cases brought under it since the law can clearly be read that only those impersonations that appeal to prurient interests are banned. Commented Mar 4, 2023 at 3:03
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    For a non native English speaker "prurient interest" is difficult to understand. I've never come across it before. Could maybe some examples be given that have expressed prurient interest in the past? Commented Mar 4, 2023 at 8:47
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    "[in] the eyes of the Tennessee lawmakers, drag is obscene": the law does not imply that all drag is obscene; rather, it limits its application to drag performers who provide obscene entertainment.
    – phoog
    Commented Mar 4, 2023 at 12:05
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    It really resorts to the Potter Stewart test: "I know it when I see it." en.wikipedia.org/wiki/I_know_it_when_I_see_it
    – Barmar
    Commented Mar 4, 2023 at 17:57
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    The matter is complicated by the fact that you actually can't ban pornography, because it's protected artistic speech under the 1st amendment. What you can do is regulate it, and the standard "all actors are 18 years or older" is effectively the combination of federal law and California state law (CA requires 18+, a lot of porn is produced in CA because the state's laws and jurisprudence on porn are otherwise among the least restrictive, and federal law imposes labelling restrictions etc. the net effect of which is that it's easier to just make CA's requirements the default). Commented Mar 5, 2023 at 19:19
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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.

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    Probably the closest thing to a borderline case would be traditional-style Shakespeare performances, where men played female roles. And on the opposite side, women portraying Peter Pan. But neither of these is typically sexualized.
    – Barmar
    Commented Mar 4, 2023 at 18:01
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    @Acccumulation The law applies to adult entertainment / entertainers and includes a definition of who is an adult entertainer (I had omitted that part for brevity in my post). Please see the updates to my post and follow the cited link for more info.
    – sfxedit
    Commented Mar 5, 2023 at 4:49
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    I don't see where it says that "adult entertainer" rests on self-identification. Commented Mar 5, 2023 at 18:20
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    Nothing in the law says an adult entertainer is someone who performs what is in reality adult entertainment. Actually, the bill specifies all "male or female impersonators" are considered to be "adult cabaret entertainment" whether or not there is a fee, whether or not they are professionals. The rest of the words are deliberately ambiguous, as we know perfectly well that Republicans consider all transgender behaviour to be "adult-oriented" for example. Commented Mar 7, 2023 at 18:01
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    @user253751 I agree with your comment in general, but I'd caution from using absolutes like 'all Republicans'. Just over half of republicans (54%) say that support for trans folks is bad for society (pewresearch.org/fact-tank/2022/02/11/…) that means almost half are okay with it, and less then half likely consider it adult-oriented. Remember the representatives of both political parties tend to lean further towards their side of political spectrum then the average person voting for them.
    – dsollen
    Commented Mar 8, 2023 at 18:26
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.

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    "[The law] does not apply to performances given in a venue that is dedicated to such performances." On the contrary, as you note in the next sentence, the law applies in any "location where the adult cabaret entertainment could be viewed by a person who is not an adult," even if the location is a venue dedicated to drag performances.
    – Vectornaut
    Commented Mar 4, 2023 at 18:57
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    The coverage is largely accurate. What kind of entertainment is prurient? Conservative judges will know it when they see it! Transgender people giving book readings that mention their love lives? It could be. I guess you will just have to trust Trump-appointed justices to get this right. Where could entertainment be viewed by people who are not adults? Pretty much anywhere! You don't have blacked out windows and a bouncer at the door checking IDs? Go directly to jail, do not pass Go, do not collect $200.
    – Obie 2.0
    Commented Mar 4, 2023 at 20:52
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    "Drag performances that aren't obscene are not affected by the law." That's BS. Anyone who is charged under the law will be affected by it. And you don't need to actually be appealing to a prurient interest for a DA to file charges claiming that you are. Commented Mar 5, 2023 at 4:19
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    "I'll try to think of a better one. I meant to say that they do not fall under the law's definition, so it does not purport to apply to them." Laws that are ambiguous enough to allow the government to claim they're innocuous, but later stretch them to oppress disfavored group, is exactly how fascists tend to start out. Jim Crow voting laws required voters to be "literate", allowing local officials leeway to simply declare anyone they didn't want to vote to be "illiterate". There was nothing in the law that explicitly said Black people weren't allowed to vote. Commented Mar 5, 2023 at 18:26
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    @phoog I guarantee that Republicans count all transgender behaviour as "prurient". It's not like they haven't publicly stated as much. You've seen them imply all transgender people are "groomers" (child sexual abusers) enough times by now. Commented Mar 7, 2023 at 18:03

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