Protect Drag Performance by Relying on Civil Rights Precedents

President Donald Trump’s pledge to end drag shows at the Kennedy Center is just the latest move to ban this long-performed style of entertainment in a long effort to restrict drag performances.

Several states have already banned drag shows, triggering litigation that largely has produced drag-friendly rulings under the First Amendment. Undaunted, universities are now experimenting with bans, including Texas A&M, which faces a lawsuit and was recently enjoined from enforcing its drag prohibitions and ordered to allow the “Draggieland” performance to proceed in March.

Some audiences consider drag controversial enough to incite violence. Just last month, the US Court of Appeals for the Sixth Circuit affirmed the prison sentence of a defendant who used Molotov cocktails to firebomb the Community Church of Chesterland, Ohio, which hosts events like drag story hour, where a drag queen reads children’s books to kids.

This incident isn’t isolated. As drag hosts dig in their heels, story hours have been attacked coast-to-coast, affecting communities from Concord, N.H., to San Fernando, Calif.

Banning drag shows tests the constitutional limits of restricting performances and spectacles, and bans should also be placed against a backdrop of historical discrimination against the LGBTQ+ community. The more advocates can emphasize a history of discrimination against the LGBTQ+ community, the more courts may see bans as unlawful viewpoint or content discrimination.

By linking drag bans to this broader context of exclusion—and citing cases where the Supreme Court struck down anti-LGBTQ+ measures—such as Romer v. Evans and Obergefell v. Hodges— advocates could invoke protection under the 14th Amendment.

As legal battles unfold, most rulings have affirmed that drag is a form of constitutionally protected expression under the First Amendment. In Helena, Mont., several plaintiffs—including the Imperial Sovereign Court, a nonprofit organization producing community-based drag performances—challenged a law prohibiting drag story hours in schools and libraries.

A federal district court judge issued a temporary restraining order allowing the annual Montana Pride event to proceed with drag storytelling and performance, noting the ban would “disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms, including trans and Two-Spirit people.”

Similarly, in Utah, a federal court ruled in favor of the plaintiffs, Southern Utah Drag Stars, when the City of St. George attempted to block a community drag show at a public park. Citing the preferential treatment of other performers, the plaintiffs created an evidentiary record showing that the city’s enforcement actions were a pretext for discrimination.

In granting a preliminary injunction, the court found that drag shows are indisputably protected speech containing political and social messages about self-expression, gender stereotypes, and LGBTQ+ identity.

The outcomes in Montana and Utah confirm that drag falls squarely within the First Amendment. However, not all courts have been as drag-friendly. West Texas A&M University successfully banned a performance from campus, claiming that drag was misogynistic and analogizing it to “blackface minstrelsy.”

Equating drag with minstrelsy is a false analogy, as their origins and expressions are unique and distinct. Minstrelsy is rooted in the history of US slavery, but theatrical gender expression through dress has existed across time and space, from Shakespearean productions and college troupes like Mask & Wig to Les Ballets Trockadero de Monte Carlo.

Nevertheless, the latest crackdown across all 11 Texas A&M campuses is designed to push the limits. But the West Texas ruling is an outlier. When drag bans face legal scrutiny, they typically fail, as proven by additional drag-friendly rulings in Texas, in Tennessee, and in Florida.

Still, drag continues to be a lightning rod, and the legal community should pay close attention to developments in the Texas A&M case, where a preliminary injunction was granted against the university in March.

So far, these cases have tended to focus on speech and expression. To assuage concerns about constitutional relevance, advocates should consider methodically articulating how drag conveys political, social, and personal messages.

Drag also conveys meaning through expressive conduct and speech—including, but not limited to, creative expressions such as drama, comedy, parody, singing, dancing, performing, costuming, theatrical staging, and storytelling.

Advocates should consider making the business case for drag. Commerce creates unique opportunities for legal advocacy, including presenting claims for injuries based on business disruption, contract interference, and revenue loss.

Pecuniary harm often complements constitutional claims and may prompt courts to take different analytical approaches in future cases. Since drag shows buoy the economy, impacted businesses could document their financial harm and commercial burdens, providing courts with a measurable basis for judicial intervention and relief. This pro-business lens could bolster drag.

By ensuring the show goes on, legal advocates can help protect diverse voices, foster economic growth, and promote entrepreneurship.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Iván Espinoza-Madrigal is the executive director of Lawyers for Civil Rights, an organization founded at the request of President John F. Kennedy.

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