A man holds up a sign questioning if religious uniforms fall under the same definition as the clothing drag performers wear in Phoenix during a protest of anti-drag bills on Jan. 22, 2023. The definitions included in the bills, which seek to target drag performers who often use clothing perceived as belonging to the opposite sex, have been criticized as being too broad. Photo by Gloria Rebecca Gomez | Arizona Mirror
Concerns that a proposal seeking to restrict drag shows could lead to the criminalization of transgender Arizonans were ignored by Republican lawmakers on Thursday, who defended their approval of the bill by equating drag with pedophilia and calling it “evil” that must be stamped out.
“I will do everything I can as a senator in this chamber to protect Arizona children from perversion (and) grooming,” said Sen. Anthony Kern, the Glendale Republican who is sponsoring the bill. “I do not believe all drag performers are pedophiles and I do not believe all drag performers are targeting children, but I do think that there…are some bad apples in each group.”
Drag shows have emerged as the newest front in the GOP culture war, after a family-friendly drag brunch in Texas last year was the subject of protests from white nationalist-aligned far-right activists. Kern said his bill was inspired, in part, by that incident.
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His proposal, Senate Bill 1028, places drag shows that entertain audiences in a “sexually explicit manner” under the definition of adult cabaret performances, which have been historically limited to strip shows.
Under the bill’s provisions, such shows would be banned from being held on public property or anywhere a minor could possibly view them. The first violation of the bill’s rules would result in a class 1 misdemeanor for the performer or business hosting them, which could lead to a $2,500 fine and up to 6 months in jail. A second violation is punished with a class 6 felony, which comes with a fine of up to $150,000 and a prison sentence as long as two years.
Critics said the bill’s definition of drag performers could end up looping in transgender people and everyday actors in satirical plays. That definition says anyone who uses clothing, makeup or “other physical markers” that are traditionally perceived as belonging to the opposite biological sex to exaggerate gender roles and sing, dance or act is a drag performer.
Marilyn Rodriguez, a lobbyist for the Arizona chapter of the American Civil Liberties Union, slammed the proposal as an attempt to legislate LGBTQ identities out of the public sphere.
“Let’s call this what it is: an unhinged attempt to remove LGBTQ people from public life,” she said.
The problem is that children are being targeted in many areas, and it is evil against good…and we’ve got to push back on evil.
– Sen. Anthony Kern, R-Glendale
Jessica Alice Harper added that she would be unable to live her life as a transgender woman if the bill were to pass, and accused legislators of using incendiary rhetoric to turn the public away from the trans community.
“This bill is so vaguely written, it would effectively make it illegal for me to exist in public,” she said. “You either want to legislate us out of existence, rile up mentally unstable people into mass shootings aimed at our community or make life so hard for us that we kill ourselves.”
Republican lawmakers, however, disagreed.
Kern defended his bill as a protection for children who were unfairly exposed to adult-oriented shows, and said the language was narrow enough not to jeopardize anyone outside of sexually explicit drag performances.
But Lisa Bivens, a member of Arizona Attorneys for Criminal Justice, disputed that assertion. The measure defines sexually explicit behavior as having an intent to satisfy a “prurient interest,” which Bivens said is dangerously unclear for both law enforcement officers charged with making arrests and prosecutors interpreting the law in the courts.
“It’s just too broad to provide any meaningful guidance,” she said.
Supreme Court justices, Bivens noted, have ruled in the past that pornography and obscenity can be identified on an “I know it when I see it” basis. That kind of subjectivity, she said, means that laws regulating such issues need to be as narrowly tailored as possible. When laws aren’t specific enough, the only recourse left to clarify their parameters is through the appellate process — which can quickly rack up costs for taxpayers.
The bill also risks running afoul of the First Amendment right to free speech, Bivens added, which protects the expression of ideas in spite of the discomfort of others.
Amanda Brown, a local drag performer, questioned why drag artists are being targeted by the bill when it’s the parents who choose to take their children to shows.
“If they take them to an adult nightclub, then that’s their issue. They should be punished and fined, not the entertainer,” she said.
Democrats on the panel unanimously opposed the proposal, which passed 4-3 along party lines, citing concern over how it could be used against trans and gender non-conforming individuals.
Sen. Christine Marsh, D-Phoenix, said laws already exist that protect minors from sexually explicit shows and pornography. State law prohibits minors from being able to enter such spaces and restricts where and when they are allowed to be held or sold.
If the language in the bill were to be revised to criminalize only sexually explicit shows instead of drag performers, Marsh said she would support it, even though it would be a redundant effort.
“It singles out a particular community, many of whose members are already incredibly vulnerable,” she said.
Kern, who throughout the hearing repeatedly said the bill’s intent was not to single out the drag community, reversed his position in his final remarks and called drag performances evil.
“The reason we are singling out drag performances is (because) there are drag performances out there that are targeting children, and that needs to stop,” he said. “The problem is that children are being targeted in many areas, and it is evil against good…and we’ve got to push back on evil.”
The next step for the bill is to go before the entire Senate for approval. Even if it makes it out of both chambers with the approval of the Republican majority, however, it is almost certainly destined to be rejected by Gov. Katie Hobbs, who has previously denounced anti-trans laws passed by her Republican predecessor and vowed to sign only bills that earn bipartisan support.
Another anti-trans bill proposed this session to restrict pronoun use in schools was summarily dismissed by her chief of staff.
Let’s call this what it is: an unhinged attempt to remove LGBTQ people from public life.
– Marilyn Rodriguez, ACLU of Arizona lobbyist
Jeremy Helfgot, a spokesperson for Phoenix Pride — whose events and widely attended Pride Parade would be severely affected by SB1028 — told the Arizona Mirror that it’s reassuring to know Hobbs has the LGBTQ community’s best interests in mind, though he lamented that the GOP majority keeps proposing discriminatory legislation.
The goal, he said, isn’t necessarily for the bills to become law, but rather to signal to the party’s base.
“It is a relief to know that the governor is going to ensure that this form of cultural expression and the individual people who engage in it are going to remain protected,” he said. “It begs the question: why are these lawmakers pursuing this when they know it has absolutely no chance of becoming law? And the answer is, it’s a fundraising tool.”
Helfgot noted that SB1028 and legislation like it has far-reaching consequences, even if they’re ultimately vetoed. Trans and questioning youth who are listening to the harmful rhetoric being advanced by lawmakers stand to suffer the most, he said.
“Transgender kids who are harming themselves are not doing so because of their transgender identity, they’re doing so because policies like this are telling them that the world we live in is a place that doesn’t want them, where they cannot be themselves,” he said.
Suicide rates among trans youth is high. As much as 82% of trans youth have considered suicide and LGBTQ advocacy group the Trevor Project found that anti-trans rhetoric from state leaders only worsens that reality.
Helfgot added that efforts to legislate away LGBTQ Arizonans and events imperil the state’s money making power — a concern that should be at the top of legislator’s minds amid a looming recession. Legislative proposals like Kern’s do the opposite, deterring businesses from seeking a home in Arizona or a host for their events. Phoenix Pride alone drew in more than 40,000 to downtown Phoenix last year during its Pride month activities.
Lawmakers should take their cue from equally deleterious past attempts, Helfgot said, like SB1062 in 2014, which sought to protect businesses with a religious conviction against hiring LGBTQ people, that was ultimately vetoed by then-Gov. Jan Brewer after pressure from the business community, and SB1070, which resulted in costly boycotts and losses for the tourism and convention industries.
“Laws like this even being contemplated in this state sends a message to employers who may locate here, it sends a message to organizations that may bring large-scale events here, that we’re not a welcoming state,” Helfgot warned.
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