Montana Drag Ban Bill Could Target Peter Pan, Halloween Costumes

Montana heard HB359, a drag ban in public that goes further than Tennessee's drag bill passed earlier this year. People testified that it could be used against theaters and Halloween costumes.

Representative Braxton Mitchell, sponsor of HB 359.

Today, Montana's Senate Judiciary Committee considered HB359, a bill that seeks to prohibit “drag performances” in public spaces and label any establishment hosting a drag show as a "sexually oriented business." The bill's broad language and far-reaching implications have sparked fierce opposition, as opponents argue it could target theater productions, the transgender community, Pride events, and beyond. A representative from the local theater scene voiced concerns over the bill's potential impact on plays such as Peter Pan, Rent, and Mrs. Doubtfire. Another witness warned that the legislation might even extend to Halloween costumes, illustrating the bill's potentially sweeping consequences.

The bill, which has already passed the Montana House, would be the second drag ban enacted in the United States if it passes. Earlier this year, Tennessee passed a drag ban that used very similar language. That bill was blocked in court by a federal judge, who stated that he could see “at least three ways” in which the bill was likely to be found unconstitutional. Montana’s bill is even more extreme than Tennessee’s. While Tennessee's law was amended at the last minute to adopt a narrower definition of obscenity based on the Miller Test, Montana's version contends that drag is obscene and illegal when performed in public if it "incites lustful thoughts" in an observer. This vague criterion implies that if a single individual finds a performance titillating, it could be deemed illegal.

See the portion of the bill specifying these criteria:

Portions of the bill that define drag as including “male or female impersonators" appealing to a prurient interest, and then defining prurient interest as “inciting lustful thoughts.”

When this bill was originally heard in the House, Democrats attempted to amend the bill to state that the conduct would only be illegal if it had the “intent to incite lustful thoughts.” This amendment was voted down by Republican proponents of the bill, showing that they do not care about intent and seek to criminalize drag if even a single person finds it sexually appealing. It then passed the House on a nearly party-line vote.

Today, many opponents testified as the bill reached the Senate Judiciary Committee. Several members pointed out that the bill would almost certainly be found unconstitutional due to the judge’s ruling in Tennessee. Kegan Medrano from the ACLU used language directly from the Tennessee ruling, stating, “It is unconstitutional censorship, it is content based restriction and such restriction is subject to strict scrutiny."

Additional critics of the bill argued that it could potentially ban theater productions such as Peter Pan, Mrs. Doubtfire, Rent, and even Shakespeare plays that incorporate drag elements. This concern was highlighted by Corinne Woods, Managing Director of Grandstreet Theatre, who noted that the bill could jeopardize any theater staging a play featuring drag. The possibility that a single audience member finding the performance arousing might lead to a theater's license being revoked—due to being classified as a "sexually oriented business" under the proposed legislation—would be too high of a risk for many threatres.

Another witness testified that sometimes, she and her husband do cross-gender costumes for Halloween. She then joked that she “could not control other people’s lustful thoughts,” raising the point that the bill could target any form of gender nonconformity in public. The entire committee burst into laughter in her testimony, including many Senate Republicans:

Erin Reed @ErinInTheMorn

"There are a number of times where, for instance, on Halloween I dress as peter pan and my husband dresses as tinkerbell. I cannot control other people's lustful thoughts." Everyone erupts in laughter, including Republicans on the committee.

The bill is likely going to be considered unconstitutional the moment that it passes, should it pass. Multiple witnesses from organizations testified to this effect. That is because this bill defines drag as illegal in public if it “appeals to the prurient interest,” which is only one part of the three part Miller Test that the supreme court has used to determine if an obscenity law that restricts speech is constitutional. In order to be constitutional, the Miller test specifies that speech can be considered obscene if it fills all of the following requirements:

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

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

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

Because the bill only specifies drag performances that “appeal to the prurient interest” would be illegal, the law would fail the Miller Test requirements. Family-friendly drag does not depict in a patently offensive way any sort of sexual conduct. Furthermore, family-friendly drag very obviously has artistic and political value. Even the “prurient interest” portion that is in the Montana bill is only a part of Item 1 of the Miller Test - the bill does not, for instance, specify that contemporary community standards need to be applied.

If it passes, the Montana bill, much like the Tennessee legislation, is likely to be found unconstitutional and immediately enjoined in court for several reasons. By explicitly mentioning "male or female impersonators," the bill targets specific types of speech or expression rather than focusing solely on obscene conduct, making it non-content-neutral. Furthermore, the bill's vague and overly broad language creates ambiguity, as terms like "male and female impersonator" remain undefined. This lack of clarity raises questions about whether the bill would apply to drag performances in plays, Halloween costumes, or even transgender individuals. Additionally, its extensive application to all public spaces could be considered overly broad and not narrowly tailored, further undermining its constitutionality. These factors contributed to the injunction against the Tennessee bill in court just last week.

Opponents to the bill vastly outnumbered those in favor. Only 3 people spoke for the bill in person and a few others testified online. Meanwhile, dozens testified against the bill. This led to the bills sponsor, Representative Braxton Mitchell, to grow frustrated and exclaim when he closed on his bill that “nobody here has jobs anyway.” The bill will then go for executive action soon, where Senators will decide whether or not to move it to the full Senate floor for final passage.

Disclosure: The author of this article testified against the Montana drag ban in committee.