Groups challenge Montana’s ‘drag ban’ in federal court

Plaintiffs: Events are being cancelled and LGBTQ+ community targeted

By: - July 7, 2023 1:01 pm

Elani Borhegyi performs as Jackie during a drag story hour in the rotunda of the Montana State Capitol in Helena on Thursday, April 13, 2023. (Photography by Mike Clark for the Daily Montanan)

A coalition of 10 ranging from a public school teacher to a brewery have filed a lawsuit in federal court challenging Montana’s expansive “drag ban” law, which not only outlaws any public drag performance, but targets nearly anyone in a costume for punishment and fines.

The 2023 Montana Legislature passed House Bill 359, which was sponsored by Rep. Braxton Mitchell, R-Columbia Falls, and continually expanded as it wound its way to Gov. Greg Gianforte for his signature. In addition to challenging the constitutionality of the law, the suit names Montana Attorney General Austin Knudsen, Superintendent of Public Instruction Elsie Arntzen and Butte-Silver Bow County Administrator J.P. Gallagher, who cancelled a public lecture of a transgender woman at the public library, worried that the discussion of the history of Two Spirit people in Native American tradition would trigger the penalties of the new law.

The lawsuit, filed in Butte’s federal courthouse late Thursday, alleges HB 359 goes far beyond targeting just the LGBTQ+ community or drag performers, it also could jeopardize classroom activities including Shakespeare plays as well as anyone in a superhero costume. Moreover, attorneys representing the group say the law is so vague that it is impossible to know how to comply legally.

For example, the new law allows residents to sue for violations that were as long as 10 years in the past, and could even be onerous enough to include a youth who attended an R-rated movie with parental permission.

The lawsuit also highlights several different ways in which the law has already had a negative impact on groups, including a dance group and teacher who say they can’t perform or teach because of the law’s vagueness and steep penalties.

“Worse still, an entity that receives any state funds – (for example) any art museum or independent theater – cannot display a live or prerecorded performance with essentially any sexual content, regardless of artistic merit and even if the audience is limited to adults,” the suit alleges. “HB 359’s penalty provisions are as confusing as they are draconian.”

Any entity or employee of an organization that receives state funding “shall be fined $5,000,” according to the text of HB 359. Teachers and other school personnel who are found to violate the law will be suspended for a year. If they’re convicted a second time, they will lose their teaching licenses. Businesses that receive state funds and serve alcohol could lose their licenses for one violation.

“HB 359 is calculated to target the LGBTQ+ community, but the bill overshoots this sinister mark,” the lawsuit said. “HB 359 threatens teachers, artists, small businesses, and cultural and scientific institutions with criminal and professional sanctions.”

The suit asks the federal court to issue a temporary injunction against the state from enforcing the law, and also seeks to have the judge strike down the law because attorneys representing the group said the law violates the U.S. Constitution, including the First Amendment’s guarantee of freedom of speech and expression.

“HB 359’s restrictions are content- and viewpoint-based. Thus it is ‘presumptively unconstitutional’ and subject to strict scrutiny,” the lawsuit said. “The government has no compelling interest in protecting children from drag story hours and/or drag performers.”

The Montana Attorney General’s Office did not immediately respond for comment when contacted on Friday morning.

The parties

The list of plaintiffs is varied and expansive. Adria Jawort, a transgender woman, author, lobbyist and member of the Northern Cheyenne tribe, was one of the first notable casualties of the newly minted law. Last month, she was scheduled to speak about transgender and Two Spirit issues at the Butte-Silver Bow Public library, but was cancelled by Gallagher after concerns that her lecture in a public library would run afoul of HB 359.

A group, “White Lives Matter,” took responsibility for Jawort’s cancellation, posting on the social media platform Telegram:

“Victory again! Thanks to our campaign of complaints to the city, a disgusting 43 YEAR OLD MAN who wears dresses … was barred from reading at the Butte public library today! Just look at that pic (of Adria dressed for Halloween) proof that all of our enemies are mentally ill and pedophiles.”


“Jawort’s lecture was canceled because she is transgender, because she wears makeup, and/or because she intended to speak about LGBTQ+ issues. No matter what combination of potential factors led to the cancellation, the cancellation violated her constitutional rights to free speech and equal protection,” the lawsuit said. “The cancellation caused Jawort emotional and reputational damage. By suggesting that she poses a threat to minors and cancelling her publicized lecture, Gallagher harmed Jawort’s reputation as a speaker and writer on gender identity issues.”

Rachel Corcoran is a teacher in Billings and routinely dresses up as fictional and historic male and female figures “to connect with students, enhance learning and build community.” Her characters include a “crazy cat lady,” Waldo from “Where’s Waldo,” the rapper Eazy-E, Tina Turner and Princess Bubblegum from “Adventure Time.” Because she dresses up and teaches in public schools, she could face criminal penalties as well as revocation of her teaching license.

Other groups include the Montana Book Company, which has hosted drag time story hour and “plans to continue to host appropriate drag events open to the public.”

Imagine Nation Brewing Company in Missoula has hosted all-ages drag shows in which they serve alcohol, and said that the business has a lease-to-own agreement with the building’s owners, who have received state funding. It also has a lending library on site.

BumbleBee Aerial Fitness is located in Helena and teaches aerial arts and choreography. The students and instructors give live performances, but said their events have been cancelled due to concerns about the law.

The famous Myrna Loy Theater, which has transformed a former Lewis and Clark County Jail into art space, is a recipient of state grants and leases the space from the county. Leaders there are concerned that films or live performances “with artistic and educational merit” may violate House Bill 359.

What does this mean?

The lawsuit filed Thursday focused on the vague definitions and meanings within the law, arguing that the terms were so broad and general that it has already created a cascade of cancellations because individuals and organizations can’t easily understand if they’re breaking the law.

For example, the lawsuit said that organizations working with Pride events across Montana were concerned because they have “fielded innumerable questions from members about what HB 359 does and does not allow.”

“The organizations have been unable to answer these questions despite carefully analyzing HB 359,” the lawsuit said. “Members cannot reasonably determine how to comply with the law because its language is ambiguous.”

The Montana Book Company and Imagine Nation Brewing said they plan to host all-audience book readings and events that feature drag performers.

“Neither organization has been able to determine whether its events will be subject to criminal penalties, the suit said.

And attorneys argue that the Myrna Loy, which uses government funding, will show “age-appropriate” movies, and use the Motion Picture Association ratings. Still the theater fears doing so may risk a fine or lawsuit.

The suit details some of the conflicting or vague language. For example, it specifically differentiates female breasts from “prosthetic breasts.”

“Human cleavage is allowed, whereas prosthetic cleavage is not. Thus, the bill directly targets women or men with prosthetic breasts based on their expressive activity,” the suit said.

Another portion of the law restricts performances that involve stripping, which is defined as “removing or pretending to remove clothing ‘in a sexual manner’ even if nudity does not result. ‘Sexual manner’ is not defined.”

“HB 359 thus encompasses many non-obscene theatrical, film, and drag performances – even a performance that includes costume changes,” the lawsuit said. “As a result of this mountain of confusing and overbroad definitions, plaintiffs have well-founded fears of criminal and civil liability.

“A reasonable person cannot know what is and what is not restricted by law.”

Attack on the LGBTQ+ community

Opponents of the law also claim that HB 359 unfairly singles out the LGBTQ+ community.

While supporters, including Mitchell, testified that the laws were necessary to protect children and youth from graphic images or sexually explicit material, the attorneys who filed the suit said that Montana law already imposes criminal penalties to anyone who presents “an obscene exhibition of a person’s body to anyone under 18 years of age.”

“Drag is not definitionally obscene; it is a form of expression that exaggerates, satirizes and critiques gender. A drag performance may be obscene, just as dance performances, films and still images may be obscene. HB 359 adds nothing to existing protections for children in Montana,” the suit said.

The suit didn’t just single out Mitchell for his comments, which included his assertion that the only reason why more Montana residents didn’t show up to legislative hearings to support HB 359 was because they had jobs, but supporters did not.

It also highlighted a post by Sen. Theresa Manzella, R-Hamilton, who published a meme to Facebook that shows a rider on a horse dragging a person through a dusty street on a rope with the caption “Make Drag Shows Great Again.” To that she added, “Nothing like a good western.”

Public input

Another aspect being challenged in the lawsuit is Montana’s “free conference committees.” Those ad hoc committees are groups of lawmakers from both the Montana House and Senate that reconcile different versions of bills passed. The free conference committees usually happen in the last days of the session as a means of completing work on time.

However, because they are rushed, they often are given little notice and sometimes do not take any public input, both things which are usually obligatory under the state’s Constitution. One of those committees took up HB359.

“Their format does not allow for the same robust debate and public comment as a committee hearing,” the suit said. “Public commentary was limited to a total of 10 minutes. Commenters described additional absurd implications of the newly amended bill, which could reach: a female performer dressed as a male clown; transgender library employees; a recent performance of ‘Twelfth Night’ at Carroll College; Disney princesses; and students costumed as past presidents.”

2023-07-06 - Complaint - final

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.