Today, the House State Affairs Committee debated two unconstitutional pieces of legislation regarding drag show performances in front of young people and on state-owned property.
The ACLU of South Dakota opposed House Bill 1116, which passed, and House Bill 1125, which was tabled. Both bills violate First Amendment protections and provoke a broader cultural suppression of LGBTQ+ and Two Spirit people.
“The First Amendment protects freedom of speech and expression, no matter what you are wearing,” said Samantha Chapman, ACLU of South Dakota advocacy manager. “It’s discriminatory and unconstitutional to single out male and female impersonators in a bid to shut down their speech. If our elected officials are uncomfortable with drag shows – no matter where they are performed – they do not need to attend the performances. Nor do they need to take their kids.”
House Bill 1125 insinuates that all instances of drag performance are inherently sexual in nature. It assumes that the law can hypothesize the intent of all future expression communicated through drag or portrayal as a gender other than a person’s sex assigned at birth. The bill uses discrimination as a vehicle for censorship, and it would not sustain constitutional challenge, plain and simple.
House Bill 1116 was amended during the committee hearing to strike any reference to drag performances. Although the bill no longer specifically targets the LGBTQ+ and Two Spirit community, it is so vaguely written that potential censorship of free speech would affect all South Dakotans.
“The flimsy attempt to protect intellectual diversity is yet again too broad to withstand the strict scrutiny it triggers,” Chapman said. “Wherever there is an effort to restrict South Dakotans’ free speech and expression based on the content of that expression, the government has to have a compelling interest in that effort and must write such laws in the least speech-restrictive way possible. The bill’s sponsor was unable to detail how these laws would be enforced, and that should concern every single South Dakotan.”
Drag show restrictions have become a leading cultural issue during for legislators across the country. Similar legislation has been filed in Arizona, Arkansas, Florida, Idaho, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas and West Virginia.
“Drag is a visual expression and celebration of the culture and resilience of the LGBTQ+ and Two Spirit community, and is paved into the history of the movement,” Chapman said. “It has been a part of the creative community for centuries and bills like this would have far-reaching implications on the historical tradition of artistic freedom. Let’s call this what it is — an unconstitutional censorship attempt rooted in a coordinated national effort to push LGBTQ+ and Two Spirit people out of public life.”
About the ACLU of South Dakota
The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ+ and Two Spirit communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.