Federal appeals court dismisses lawsuit over Tennessee's anti-drag show ban

A federal appeals court on Thursday dismissed a lawsuit challenging first-in-the-nation law designed to place strict limits on drag shows, reversing a lower court ruling that deemed the statute unconstitutional and blocked its enforcement in part of the state.

The 6th U.S. Circuit Court of Appeals ruled that the Memphis-based LGBTQ+ theater company that filed the complaint last year lacked the legal right to sue over the law.

Friends of George's had alleged that the law would negatively affect them because they produce “drag-centric performances, comedy sketches, and plays” with no age restrictions.

However, the federal appeals court found that Friends of George's was not at risk of violating the 2023 law because its performances were not “harmful to minors.”

Tennessee’s Republican-dominated Legislature advanced the anti-drag law last year with the support of Republican Gov. Bill Lee. Several GOP members pointed to drag performances in their hometowns as reasons why it was necessary to restrict such performances from taking place in public or where children could view them.

Yet the actual word “drag” doesn’t appear in the statute. Instead, lawmakers changed the state’s definition of adult cabaret to mean “adult-oriented performances that are harmful to minors.” Furthermore, “male or female impersonators” were classified as a form of adult cabaret, akin to strippers or topless dancers.

The law banned adult cabaret performances on public property or anywhere minors might be present. Performers who break the law risk being charged with a misdemeanor or a felony for a repeat offense.

In Thursday's ruling, the justices stressed that term “harmful to minors” has a specific definition under Tennessee law — which has three components that must be met in order to prosecute. The ruling also pointed out that the Tennessee Supreme Court limited the definition of “harmful to a minor” to materials lacking "serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor.”

“FOG 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 FOG’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.

Friends of George's did not immediately respond to an email seeking comment on the ruling.

Questions over how Tennessee's anti-drag ban should be enforced have constantly been debated since the law's inception. Democrats, who hold only a sliver of power in Tennessee, were quick to argue that the law was too vague and could be used by a prosecutor to target the LGBTQ+ community.

While a federal judge last June sided with Friends of George's that the law was "substantially overbroad” and encouraged “discriminatory enforcement,” the ruling only applied to Shelby County, where Memphis lies.

Shortly after, a district attorney warned Pride organizers in eastern Tennessee that he planned on enforcing the anti-drag ban during their annual festival, prompting organizers in Blount County to sue. A federal judge eventually granted a temporary restraining order preventing law enforcement and the district attorney from the enforcing the state law.

Similar to other Republican-led states, Tennessee's Republican supermajority has repeatedly passed laws over the years targeting transgender people and the LGBTQ+ community.

Earlier this year, the Human Rights Campaign announced that Tennessee has enacted more anti-LGBTQ+ laws more than any other state since 2015, identifying more than 20 bills that advanced out of the Legislature this year alone.

That included sending Gov. Lee a bill banning the spending of state money on hormone therapy or sex reassignment procedures for prisoners — though it would not apply to state inmates currently receiving hormone therapy — and requiring public school employees to out transgender students to their parents.