Dan Kobil is Professor of Constitutional Law at Capital University Law School in Columbus.
The Ohio General Assembly is doing its best to ensure that the phrase “this is a free country” becomes a dead letter here. ohio
Not content with enforcing Ohio’s criminal ban on supplying obscene material to minors, culture war politicians are trying to enact vague and unimaginative laws banning drag shows and regulating women’s clothing in unprecedented ways.
Drag performances, like other forms of entertainment such as dance, theater, and film, are forms of artistic expression that are fully protected by the U.S. Constitution.
Drag shows often contain elements of humor, athleticism, and satire, but at their core, such performances are political statements that challenge social norms surrounding gender. They satirize gender stereotypes by exaggerating and mocking what is acceptable male and female behavior.
Turning police officers into art critics and theater experts
A close-up of the man’s back against a dark rose-colored background as he secures his blue lingerie with both hands.
It is a fundamental principle of constitutional law that the government cannot dictate the views that Americans are allowed to express around gender or anything else. As the U.S. Supreme Court recently explained in Chiles v. Salazar, striking down a Colorado law that barred physicians from engaging in conversion therapy that discourages homosexuality, “the First Amendment stands as a bulwark against any attempt to impose orthodoxy on thought or speech in this country.”
opinion: I went to war in my heels, wig, straps. My art is about rights
The Ohio “Indecent Exposure Modernization Act,” which recently passed the House and is pending in the Senate, attempts to enforce gender stereotypes under the guise of curbing “indecent exposure.” The Act defines a new type of indecency that must be limited to “adult cabarets”.
These are performances that are “harmful to minors” (a vague term that is open to interpretation by the police) in which performers “display a gender identity that differs from the performer’s … biological sex” by using clothing, makeup, prosthetics, or other physical markers.
Think for a moment about what the General Assembly sought to define as indecent, criminal speech.
It could be the performance of the movie Mrs. Doubtfire, starring Robin Williams as an elderly nanny who dresses as a woman near her children (if a police officer deemed it “harmful to minors”). It could be Shakespeare’s cross-dressing comedy As You Like It, where Rosalind falls in love with Orlando disguised as a male Ganymede.
In a faint nod to the Constitution’s constraints, the proposed bill purports to create an exception for “substantive films, plays, or other artistic endeavors or performances that are not obscene or harmful to minors.” However, this exception is ridiculously vague.
What is a “bonafide” artistic endeavor? Who decides? Should we rely on police officers to be art critics and theater experts? How do they determine which “non-biological” sexual performances are criminal acts, and which are “bona fide” art?
Drag queens aren’t the only ones at risk
And it’s not just drag shows that these politicians risk. In its puritanical zeal to root out new forms of “indecency,” the act also prohibits sports bras and other types of women’s clothing from being worn in “physical proximity” to those who are not members of a woman’s household.
It does this by radically expanding the definition of public indecency. The Act replaces the provision defining “private parts” with “private area,” the term criminally indecent female breasts “where exposed naked or covered by underwear.” This means that the police can publicly arrest any woman whose breasts are deemed to be “merely” covered by an “undergarment”.
Letters: Drag queens insult Ohio women like me. This is not harmless satire.
Under the law, women in Ohio risk arrest anytime they wear a bikini swimsuit, halter top or T-shirt without a bra.
Perhaps the “modernization of indecency” politicians would also like to fund a rude police force, which could comb the streets to ensure that women are dressed modestly enough to satisfy these “mullahs” of the Mahasabha.
Clearly, this proposed law is inconsistent with the basic notions of liberty that have permeated America in living memory. However, if we don’t talk to our legislators soon and tell them to keep their noses out of our rooms and entertainment, we might as well rename Columbus, “Teheran to Scioto.”
Dan Kobil is Professor of Constitutional Law at Capital University Law School in Columbus.
This article originally appeared in the Columbus Dispatch: Drag queens targeting Ohio and what women wear. opinion
