Attorneys finish arguments over Tennessee drag show ban, federal judge set to rule

Arguments between attorneys for Memphis-based theater company Friends of George's and the state of Tennessee over the state's recent passage of a law banning drag shows ended Tuesday morning, and the fate of the law now rests in the hands of a federal judge.

In closing arguments, the Tennessee state's attorneys requested that, should the law be found unconstitutional, U.S. District Court Judge Thomas Parker should only apply that unconstitutionality to Shelby County, and not the rest of the state.

Attorneys for Friends of George's said they had never heard of a law being labeled unconstitutional for a certain area, but not applying that to the rest of the state. Brice Timmons, an attorney for Friends of George's, said, "I've literally never heard an argument like that. That was unhinged. That was pretty bananas."

The plaintiff, Friends of George's, filed the suit in late March. The suit advanced quickly through federal court. Parker issued a temporary restraining order on March 31.

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Attorneys for the state of Tennessee argued in March that the law banning "male or female impersonators" was necessary to protect children from harm.

But the judge wanted further evidence that the ban, as written, served a purpose that is not already covered by the state's existing indecency laws. The state attorneys were unable to name a scenario that is not already legally prohibited by the indecency laws.

A violation of the law, Parker worried, would be left up to individual interpretation. Additionally, it carries a felony penalty that could revoke a person's right to vote if they are found guilty.

"A law is unconstitutionally vague if individuals of common intelligence must necessarily guess at its meaning and differ as to its application," Parker wrote in the 15-page decision to issue the temporary restraining order.

Further, the plaintiffs argued, "drag" is a wide-ranging term that covers a number of entertainment scenarios. The plaintiffs' attorney brought up the "Ms. Piggy Idol" contest in court as an example of performances that would be forbidden under the law as it is currently written. The "Ms. Piggy Idol" contest is a yearly fixture at the Memphis in May World Championship Barbecue Cooking Contest. It features men dressed up as feminine pigs.

The law did not outright ban all drag performances, but it deems performers as "adult cabaret" performers, and relegates drag performances to bars and venues with age-restrictions.

Final arguments about the law began Monday morning and went into the evening before Parker adjourned for the day. Tuesday's arguments were much shorter, with Parker asking multiple questions of each party.

Tennessee state attorneys argued the law should be narrowly read, and create "adult-only zones" by checking IDs at the door to all drag shows. Plaintiffs rebuked that argument, saying the law does not mention creating zones like that in privately owned buildings — aside from bars and nightclubs, which Friends of George's has made a concerted effort to move the drag scene away from — and interpreting the law that way would require Parker to re-write it.

Parker also questioned whether the law lowered the state's standards for obscenity, dropping it to what is considered obscene for minors.

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Other questions from Parker ranged from each group's view on how to interpret the law, to asking about scenarios law enforcement officers will find themselves in as they attempt to enforce the law. When state attorneys said parts of the law's language had been brought together from previously passed, unchallenged, laws, Parker pointed out that society has changed in terms of what has become acceptable and that language is being challenged now.

"Society back then may have had less awareness or acceptance of concepts like gender fluidity and homosexuality," Parker said. "Categorizing [male and female] impersonators with strippers may have made more sense back then, if you're correct that the language hasn't been challenged, then it's being challenged now in 2023."

In arguments over whether the law intentionally targeted drag performers, the state said the law listing various other performers — including strippers and "exotic dancers" — made the law not targeted at drag. In response, Judge Parker noted the nearly 30 letters from Tennesseans around the state that requested Parker to not sign an injunction against the law. Nearly all of those letters, Parker said, were about drag.

"This [case] is about speech, broadly," Timmons said after court. "We represent drag performers, Friends of George's is a drag-centric theater troupe, and, as a result, that's the speech that our client is concerned about, and this law affects that. But the law more broadly impacts the speech of other types of specific speakers in traditionally stigmatized entertainment roles. [The state] describes that list as 'illustrative,' we say that the list is exclusionary, that it is targeted at various types of entertainers who have been historically stigmatized."

It is unclear when a ruling can be expected, but attorneys for Friends of George's and the state of Tennessee still have one more filing to send in, which is due by Friday.

Micaela Watts is a reporter for The Commercial Appeal covering issues tied to education, access, and equity. She can be reached at micaela.watts@commercialappeal.com.

Lucas Finton is a criminal justice reporter with The Commercial Appeal. He can be reached at Lucas.Finton@commercialappeal.com and followed on Twitter @LucasFinton.

This article originally appeared on Memphis Commercial Appeal: Tennessee drag show ban now in fate of federal judge's hands