A US appeals court has dismissed a challenge to Tennessee’s restrictive drag performance law, reversing a lower court’s decision that had blocked the law from taking effect.
The US Court of Appeals for the Sixth Circuit ruled that the plaintiff, a theater organization named Friends of George’s (FOG), lacked standing to challenge the law’s constitutionality.
The Adult Entertainment Act (AEA) prohibits “adult cabaret entertainment” in public or in the presence of minors.
The law defines such entertainment as:
“adult-oriented performances that are harmful to minors… and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”
In the majority opinion, Judge Nalbandian stated that a plaintiff must show an injury that is “fairly traceable to the challenged conduct of the defendant” and “is likely to be redressed by the requested relief.”
The court determined that FOG failed to demonstrate that its performances fell under the prohibited categories defined by the AEA.
FOG described its shows as artistic and similar to Shakespearean and Ancient Greek theater, typically aimed at a PG-13 audience and not “too risqué.”
The court concluded that FOG did not show that its shows were “arguably adult-oriented performances that lack serious value for a reasonable 17-year-old” and therefore could not rely on potential misinterpretation of the law by law enforcement.
The lower court had previously found the AEA violated the First Amendment and was unconstitutionally vague, preventing District Attorney General Steven Mulfroy from enforcing it in Shelby County.
Judge Mathis, in his dissent, agreed with the district court, stating that the AEA restricted free speech and violated the First Amendment.
Supporters of the AEA stress the importance of protecting minors from “sexualization,” arguing that public drag performances often include inappropriate behavior for children.
Tennessee Attorney General Jonathan Skrmetti supported the court’s decision, asserting that Tennessee’s standard for “harmful to minors” is constitutionally sound and that the state has the right to prohibit obscene material from being exhibited to children.
FOG expressed disappointment with the ruling, stating:
“Instead of addressing the constitutionality of Tennessee’s drag ban, today’s ruling has left us and thousands of others in the LGBTQ+ community dangerously in limbo, with no clear answers as to how this ban will be enforced and by whom. The only thing that is clear about this law is that it’s firmly rooted in hate and defies the will of the majority of Tennesseans.”
In February, the city of Murfreesboro settled with the ACLU, agreeing to pay $500,000 for harm caused by its anti-drag ordinance and policy.
The Human Rights Campaign reported that Tennessee has enacted more anti-LGBTQ+ laws than any other state since 2015, labeling the state as increasingly hostile to LGBTQ+ residents.
The ACLU is currently tracking 40 anti-LGBTQ+ bills in Tennessee for the 2024 legislative session.
