Federal appeals court upholds Tennessee drag ban

Tennessee’s law banningdrag queens from performing in public spaces has been resurrected and can stand for now. The Sixth Circuit Court of Appeals dismissed a legal challenge to the state's controversial Adult Entertainment Act on Thursday, citing the plaintiffs’ lack of standing. The decision reversed a lower court’s ruling that had declared the law unconstitutional.

Related: Tennessee Governor Signs Felony Drag Show Bill, Bans Gender-Affirming Care

The case, brought by Friends of George’s Inc., a Memphis-based theater group known for its drag performances, sought to overturn the AEA because it violated First Amendment rights. The AEA,enacted in 2023, prohibits “adult cabaret entertainment” on public property or in any location where minors could view it. Thelaw defines such entertainment as performances that are “adult-oriented” and “harmful to minors,” including acts by topless dancers, go-go dancers, exotic dancers, strippers, and “male or female impersonators.”

The theater group argued that the AEA was overly broad and vague, effectively criminalizing their performances. ATrump-appointed federal district court judge initially agreed,issuing a permanent injunction against the law’s enforcement. However, the appellate court has now overturned this decision.

In the appellate court’sopinion, written by Judge John B. Nalbandian, a Trump appointee, and joined by Judge Eugene E. Siler Jr., the three-judge panel found that Friends of George’s did not demonstrate sufficient injury to establish standing. The court ruled that the group failed to show a credible threat of prosecution under the AEA, as its performances did not meet the statutory definition of “harmful to minors.”

Related: Tennessee Judge, Appointed by Trump, Rules Anti-Drag Law Unconstitutional

The court emphasized that the AEA’s definition of harmful content incorporated long-standing legal standards, specifically those related to obscenity and the protection of minors from explicit material. “FOG’s own evidence demonstrated that their performances possess significant artistic value, which precludes them from being classified as harmful to minors under the statute,” Nalbandian wrote.

The AEA’s passage was driven by concerns fromRepublican lawmakers about the exposure of minors to what they deemed inappropriate content. State Sen. Jack Johnson, who introduced the bill, had argued that existing laws regulating adult entertainment venues needed clarification to extend protections to all public spaces and non-age-restricted venues. Supporters of the law highlighted incidents of drag performances at public events, such asPride festivals, which they claimed included inappropriate behavior in the presence of children. During legislative debates, proponents stressed the need to prevent the “sexualization” of minors, an argument used by right-wing extremists to shield kids from anything having to do with theLGBTQ+ community.

In a dissenting opinion, Judge Andre B. Mathis, anObama appointee, argued that the majority’s interpretation placed an undue burden on performers to prove their content’s value, effectively limiting free expression. “A bedrock principle of our democratic republic is the protection of unorthodox expression,” he wrote. “The freedom to convey one’s ideas — no matter how unpopular — was seen as inalienable to the human experience.” Mathis further emphasized, “The AEA imposes a content-based restriction on speech that cannot withstand strict scrutiny. It therefore violates the First Amendment.”

Mathis also highlighted the ruling’s potential chilling effect, noting, “The AEA’s broadness makes it easier to enforce and provides law enforcement with wide discretion in deciding what conduct is potentially harmful to minors.” He warned that the decision could encourage similar laws in other states, further restricting artistic and expressive freedoms.

Melissa Stewart, one of the attorneys for Friends of George’s, expressed disappointment with the court’s decision. In an email to The Advocate, she wrote, “We are obviously greatly disappointed in the Court’s decision today. It’s important to note that the Court did not reach the issue of whether the law is constitutional. Instead, it decided this case on procedural grounds, holding that FOG does not have standing.”

Stewart continued, “As Judge Mathis’s dissent makes clear, this holding is contrary to Sixth Circuit and Supreme Court case law.”

She said that attorneys will now seek an en banc review, in which the entire court, not just the smaller panel, would hear the case.

While the immediate effect is a victory for proponents of the AEA, the broader debate over the law’s constitutionality and its impact on LGBTQ+ performers and communities remains unresolved.