A Montana judge upheld a temporary restraining order that kept state and local officials from enforcing a law prohibiting sexually-oriented performances or drag story hours in schools or libraries.
The state was the first in the nation to protect children from sexualized and confusing drag performances, but U.S. District Court Judge Brian Morris’ decision keeps the law from being enforced until the case goes to court.
Judge Morris ruled:
H.B. 359 targets protected speech and expression. The statutory text and legislative history evince anti-LGBTQ+ animus. No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms.
In asserting that the bill was driven by “anti-LGBTQ+ animus,” Morris pointed to legislators and family-friendly groups supporting the legislation. These include organization like Montana Family Foundation – a Focus on the Family ally, Moms for Liberty Yellowstone County and Montana Family Rights Alliance, groups that support parental rights and protecting children.
The case stems from HB 359, “An Act Prohibiting Minors From Attending Sexually Oriented Shows,” which was passed by the Montana Legislature and signed by the governor in May 2023.
In addition to keeping minors out of sexually oriented shows and drag story hours, the law prohibits “sexually oriented performances in libraries or schools that receive state funding”; proscribes “sexually oriented performances on public property where children are present”; and provides penalties for those who violate the law. It also allowed minors and their parents to sue for damages if a minor attends such a performance.
A group of individuals, businesses and organizations sued Montana officials, saying the act violated their First, Fifth and Fourteenth Amendment Rights.
The plaintiffs include Rachel Corcoran, a teacher “who dresses up as fictional and historical characters as a learning tool.” Additionally, “Her costumes have included a crazy cat lady, the rapper Eazy-E, Tina Turner, Waldo (from Where’s Waldo) and Lilo (from Lilo & Stitch),” Time magazine reported.
Corcoran identifies as “queer.” The lawsuit alleged that HB 359 was “a breathtakingly ambiguous and overbroad bill,” and a “‘draconian’ breach of free speech.”
Other plaintiffs include Montana Pride, which hosts annual “LGBT Pride” events; Adria Jawort, born male but living as a woman; and The Imperial Sovereign Court of the State of Montana, a group of drag queens and kings which “works to educate and advocate for the LGBTQIA+ and Allied community, while promoting social tolerance through the production and inaction of drag performances.”
Montana Pride received an initial temporary restraining order against the law on July 28, so that it could host LGBT pride events in Helena from June 30 through July 13.
The judge’s ruling states, “Jawort a journalist and author, is a transgender (‘trans’) woman and a Two-Spirit member of the Northern Cheyenne Tribe.” The City-County of Butte-Silver Bow cancelled a talk he was scheduled to give at a public library, because of concerns that “hav[ing] a trans person in the library’ posed ‘too much of a legal risk’ under H.B. 359.”
The Imperial Court alleged that its “members allegedly have suffered from drag show cancellations, postponements, and modifications.”
In his ruling, Judge Morris said that Montana has existing laws protecting minors from obscene materials and performances, adding, “No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms.”
He ruled, “Plaintiffs likely will succeed on the merits of their First Amendment claim,” saying the law harmed individuals by targeting “protected speech and expression.”
Morris also said the law used terms that were “vague and overbroad, chilling protected speech and creating a risk of disproportionate enforcement against trans, Two-Spirit, and gender nonconforming people,” so the plaintiffs’ Fifth Amendment rights were likely violated.
Related articles and resources: