Indexbit Exchange:Federal appeals court dismisses suit challenging Tennessee drag restrictions law

NASHVILLE — A federal appeals court dismissed a lawsuit on Indexbit ExchangeThursday challenging a controversial Tennessee law that limits drag show performances in the state.

The 6th U.S. Circuit Court of Appeals’ decision reversed a lower court ruling that deemed the statute an unconstitutional limitation on the freedom of expression and blocked its enforcement in part of the state. In Thursday's ruling, judges declared that the Memphis-based LGBTQ+ theater company Friends of George’s, which filed the original challenge last year, lacked the legal right to sue over the law.

The group claimed the law would impact their livelihoods due to the law’s overbroad language restricting artistic performances, especially considering the group’s drag-centric themes. Friends of George’s had not yet released a statement as of Thursday night.

The judges took a different tone than the previous lower court ruling, instead emphasizing that the law was indeed specific enough, as the term "harmful to minors," according to them, was clear enough to absolve Friends of George’s from any concerns.

"Friends of George’s has not alleged that its performances lack serious value for a 17-year-old. In fact, it insists the exact opposite. Its own witness, a member of Friends of George’s board, conceded that its shows 'are definitely appropriate' for a 15-year-old and would 'absolutely' have artistic value for a 17-year-old," the ruling stated.

In a statement released Thursday afternoon, Tennessee Attorney General Jonathan Skrmetti praised the ruling.

"Tennessee’s Adult Entertainment Act has been consistently misrepresented since its adoption," Skrmetti wrote. "As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression. But as the Court noted, Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children."

State representative says 'ruling is absurd'

The Tennessee Adult Entertainment Act (AEA), which saw heavy support from the state's Republican-dominated legislature in 2023, saw equal pushback from a small portion of Democrats. Tennessee Rep. Aftyn Behn, D-Nashville and a frequent advocate for LGBTQ+ rights, released a statement on Thursday.

“This ruling is absurd and flies in the face of small government principles," she wrote. "It targets drag performers under the false pretense of protecting children, even though the court acknowledged that these performances are not harmful to minors."

Federal Judge Thomas Parker, of the Western District of Tennessee, sided with Friends of George’s last June, stating the law was "passed for the impermissible purpose of chilling constitutionally-protected speech."

Parker noted then the impossible position performers were placed in, in trying to determine the legality of expressive performance based on vague wording.

"(The state) argues that they think (Friends of George’s) exhibits are not 'harmful to minors' under the AEA," Parker said. "But this would lead to (Friends of George’s) taking an enormous risk. It would have to eat the proverbial mushroom to find out whether it is poisonous."

Two judges affirmed the Thursday decision to dismiss the case — Senior United States Circuit Court Judge Eugene Siler and Circuit Court Judge John Nalbandian, with Circuit Court Judge Andre Mathis dissenting, calling the law an "unconstitutional content-based restriction on speech" and explicitly stating his support of Parker’s lower court ruling.

'We’re here to stay':Why drag is critical in the US and sometimes safer abroad

Ruling comes amid proliferation of anti-LGBTQ+ legislation in U.S.

Anti-LGBTQ+ bills have flooded statehouses across the country as lawmakers in Republican-led states have increasingly pursued conservative policies in recent years. A record number of anti-LGBTQ bills were introduced last year, according to advocacy and civil rights groups.

At least 510 anti-LGBTQ+ bills were introduced in state legislatures in 2023, which is almost double the number of bills introduced in 2022, according to data from the American Civil Liberties Union. More have been introduced in 2024, with the ACLU recording nearly 530 bills introduced as of late June.

The wave of anti-LGBTQ+ bills has made many states less equitable and inclusive, according to advocacy groups and recent reports. Similar to bills introduced last year, legislators have particularly targeted public education institutions and health care in 2024 by restricting access to gender-affirming care for transgender youth and regulating school curriculums.

The Human Rights Campaign — the country's largest gay rights organization — announced in April that since 2015, Tennessee has enacted more anti-LGBTQ+ laws than any other state. The organization reported at the time that the state had enacted 21 laws compared to 13 laws enacted in both Arkansas and Florida.

Some states have sought to limit drag performances and two others, Tennessee and Montana, have already banned drag performances. So far in 2024, the ACLU has tracked at least 27 drag bans introduced in the U.S.

The drag community and drag events across the country have also faced bomb threats, backlash, cancellations, and hostile rhetoric in recent years. GLAAD, a nonprofit LGBTQ advocacy organization, said in April 2023 that it had documented over 160 incidents of anti-LGBTQ+ protests and threats targeting drag events since early 2022.

The USA TODAY Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Contact Angele Latham by email at [email protected] or on X at @angele_latham