US appeals court dismisses suit challenging Tennessee anti-drag law

A US appeals court on Thursday dismissed a challenge to a Tennessee law that restricts drag performances, reversing a lower court’s decision that blocked the law from taking full effect.

The US Court of Appeals for the Sixth Circuit found that the plaintiff did not have standing in the case, dismissing the plaintiff’s challenge to the law’s constitutionality.

Judge Nalbandian wrote in the majority opinion that in order to show standing, a plaintiff must demonstrate 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 found that the plaintiff, a theater organization called Friends of George’s (FOG), failed to demonstrate that it performed the kinds of drag shows that are prohibited by the law.

The Adult Entertainment Act (AEA) prohibits the performance of “adult cabaret entertainment” in public or in the potential presence of minors. “Adult cabaret entertainment” is defined 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.”

Judge Nalbandian wrote that the state’s supreme court already interpreted the phrase “harmful to minors” and limited it to materials that “lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor.”

FOG described its performances as an “art form” similar to Shakespeare and Ancient Greek theater and said it aimed “to stick around the PG-13 area in writing” rather than be “too risqué.” The court therefore found that FOG did not “demonstrate that its shows are arguably adult-oriented performances that lack serious value for a reasonable 17-year-old” and that the plaintiff “cannot rely on the argument that the statute might be misconstrued by law enforcement.”

The district court last year held that the AEA violated the First Amendment and was unconstitutionally vague, blocking District Attorney General Steven Mulfroy from enforcing it in Shelby County. Judge Mathis on Thursday agreed with the district court, writing in his dissent that the AEA restricted free speech and therefore violated the First Amendment.

Supporters of the AEA emphasized the importance of preventing the “sexualization” of minors, claiming drag performances in public spaces included behavior that was inappropriate for children. Tennessee Attorney General Jonathan Skrmetti also supported the decision, stating that “Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children.”

FOG, however, said it was “shocked and disappointed” by the court’s decision on Thursday. The organization stated:

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 Tennessee city of Murfreesboro settled with the ACLU and agreed to pay $500,000 for the harm caused by its anti-drag ordinance and policy. The Human Rights Campaign found in 2023 that Tennessee had enacted more anti-LGBTQ+ laws than any other state in the country since 2015, making the state “increasingly hostile and unlivable for LGBTQ+ Tennesseans.” The ACLU is currently tracking 40 anti-LGBTQ+ bills in the state for the 2024 legislative session.