Judge blocks Montana drag show ban

A federal judge issued a preliminary injunction blocking a state law that restricted drag shows and “sexually oriented” performances from taking place in publicly funded buildings.

Key Players

Constance Van Kley, an attorney, represents the plaintiffs in the suit brought against the state law restricting the performances.

Austin Knudsen is Montana’s attorney general and represents the state in the suit brought against the law.

Braxton Mitchell, a Republican member of the Montana House of Representatives, was a sponsor of the law.

Adria Jawort, an Indigenous transgender author, is one of the plaintiffs in the suit brought against the law. She said her event at a public library was canceled because the library thought it would be a legal risk.

Further Details

Gov. Greg Gianforte (R) signed H.B. 359 in May 2023, which banned “drag story hours” and “sexually oriented performances” in government-funded buildings. In addition, private businesses could be fined under the law if minors were present at a “sexually oriented performance.” Teachers and librarians risked losing their state licenses, and schools and libraries could be stripped of their funding if they allowed drag reading events to be held on their premises.

Brian Morris, chief judge of U.S. District Court for the District of Montana, nominated by former President Barack Obama, blocked the law temporarily in July 2023, after 10 plaintiffs challenged it. They included Montana Pride, which believed that the city of Helena denied the organization permits to perform because of the law.

In addition, two movie theaters and Jawort joined the suit. When Jawort’s talk at a library was canceled, she told CNN, a librarian informed her that it was “too much of a legal risk to have a transgender person in the library.”

In his decision, Morris said he was issuing the order because the law restricted the plaintiffs’ Free Speech rights as well as those of Montana Pride attendees. He also cited the law’s vague language and the potential for “arbitrary discrimination” by those seeking to enforce it. 

Mitchell expressed his disappointment with the restraining order and said in a statement to the Montana Free Press, “Myself, my constituents, and the vast majority of level-headed Montanans believe that hyper sexualized events should be kept away from children.”

During a hearing on Aug. 28, Morris heard arguments over the plaintiffs’ request for a preliminary injunction, which would prevent further enforcement of the law as the lawsuit moved through the courts. 

The plaintiffs, represented by Van Key, argued at the hearing that enforcement of the law while it faced constitutional challenges would lead to “irreparable injury” and that protecting minors from forms of gender expression was not the same as protecting minors from obscene speech. 

They further argued that Montana law already protects children from obscenities and that there was no proof that drag shows or performances were harmful to children.

Knudsen asserted that drag shows were indecent and improper for minors, and that the state had a vested interest in protecting minors from exposure to that kind of conduct.

Outcome 

Judge grants preliminary injunction

On Oct. 13, Morris granted the preliminary injunction. He wrote that there was no evidence that minors faced harm from drag shows and that the law would “disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms.” He also noted that the law contained terms it did not adequately define, including “flamboyant,” “parodic,” and “glamorous,” which the law uses in identification of drag kings and queens.

Similar laws or drag show bans in other states, including Florida and Tennessee, have also been blocked in court.