In April of last year, Ohio State Representatives Angela King and Josh Williams introduced HB 249, aka the “Drag Ban”, which would heavily restrict public drag performances. The bill would do so by amending the definition of “adult cabaret performances” under already existing indecent exposure laws. These laws limit the ability of stereotypical “adult” performances to occur outside of “adult cabarets,” which (among other descriptors) require a specific license and age restrictions to comply with the law. Reps. King and Williams seek to expand the law to include “Performers or entertainers who exhibit a gender identity that is different from the performer's or entertainer's biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers” under the definition of an “adult cabaret performance”¹.
Essentially, this means that anyone who performs under a gender identity that is not consistent with their sex assigned at birth outside of a legally-defined adult cabaret may be subject to penalties ranging from a first-degree misdemeanor up to a fourth-degree felony. Suggested penalties increase depending on the presence of minors in the audience, and whether the performance in question is determined to be “obscene” in nature¹.
On the surface, it may seem as though this bill, which mirrors proposed drag bans in Texas (TX-SB12, 2023²) and Tennessee (TN-HB0009, 2023³), exclusively targets drag performances. Drag is historically defined as a performance of highly exaggerated, often satirical gender expression, which the bill seems to target. However, legislation such as this restricts freedom of expression for all of us, not just your local drag queen. Here’s why.
Digging deeper into the bill, much of the language present is subjective and up to the interpretation of the observer. In particular, what is defined as a “gender identity that is different from the performers or entertainer’s biological sex” could be taken a thousand different ways by a thousand different people. For example, an enforcing party (such as a police officer) may decide that the pants on the cisgender woman playing guitar in the park are a little too masculine and arrest them under this law.
While it may seem like a stretch for someone assigned female at birth to be arrested for playing the guitar while wearing pants, remember it was as recently as 1938 that a woman was arrested for the crime of wearing pants (see Helen Hulick⁴). The issue with bills like HB 249 is that the language is left vague on purpose, so that the discernment between what is “masculine” and “feminine” can be made by the outside observer. This shifts power from the individual to the observer to decide how that individual’s identity should be expressed. With such a power shift comes the ability to limit other forms of individual freedoms; police used outdated mask ban laws to target peaceful protesters during the Occupy Wall Street movement in 2011⁵, and again as recently as 2019 during Palestine protests⁶. HB 249 enables this type of outsider control over individual expression.
Whether you want to keep attending drag brunch at your favorite local brewery, or just want to be able to wear pants in peace, this type of government overreach affects you. Freedom of expression, as it lies with the individual, is under constitutional protection and as such is a fundamental right guaranteed to everyone in the United States. Legislation like HB 249 isn’t just about banning drag; it’s about chipping away at our fundamental human rights and deliberately taking power away from the people.
- https://www.legislature.ohio.gov/legislation/136/hb249
- https://capitol.texas.gov/tlodocs/88R/billtext/html/SB00012S.htm
- https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HB0009&ga=113
- https://www.latimes.com/california/story/2019-11-15/from-the-archives-wear-slacks-to-court-and-go-to-jail
- https://www.theatlantic.com/national/2011/09/nypd-arresting-wall-street-protesters-wearing-masks/337706/
- https://www.aclu.org/news/privacy-technology/states-dust-off-obscure-anti-mask-laws-to-target-pro-palestine-protesters
