On Thursday, the House State Affairs Committee recommended passage of a bill that claims to ban sexually explicit public performances, a bill that was drafted to try to end public drag shows often associated with gay pride festivals.
As is becoming increasingly predictable for bills authored by the Idaho Family Policy Council, a Christian nationalist organization that argues the country should be run by Old Testament law, the bill is drafted so that it bans a wide swath of activity that has nothing to do with the announced intention of banning explicit performances in public.
It defines proscribed sexual conduct to include: “Sexually provocative dances or gestures performed with accessories that exaggerate male or female primary or secondary sexual characteristics.” If you understand what those terms mean, you begin to see the staggering scope of public performances that fall within the bill’s crosshairs.
Primary sexual characteristics are reproductive organs, so that part makes some sense. Secondary sexual characteristics, however, refer to an incredibly broad range of physical features that tend to develop over the course of puberty. It includes pubic hair and women’s breasts, for example, but it also includes male facial hair, wider hips in women, greater muscularity in men, a high voice in women, a low voice in men, etc.
So a bodybuilding show, for example, highlights secondary sexual characteristics. So does any dancing that involves shaking the hips. So does a beard contest. The only requirement would be that these include “sexually provocative dances or gestures” — a term that is nowhere defined and therefore entirely in the eye of the beholder.
This definition is so broad that it is hard to imagine a single concert where numerous potential violations would not occur — each representing a potential $10,000 payday for an enterprising parent. Almost no episode of “America’s Got Talent” would be in the clear. As Rep. Brooke Green, D-Boise, pointed out, it’s highly unlikely that a Madonna concert she attended as a child would be safe. Lots of plays would be on shaky ground.
The ban is so vague and broad it is highly unlikely it would survive the strict scrutiny that’s required in First Amendment cases. That’s why its authors have used the proliferating “bounty hunter lawsuit” technique, which allows a law to effectively sidestep the Constitution.
This technique was first used by Texas to effectively ban abortion before the reversal of Roe v. Wade. The idea behind it is that nobody can challenge the constitutionality of the law until they’ve already gone through court and lost a lawsuit, so it is able to exert coercive influence for a long time before it faces constitutional scrutiny.
And the coercive effect would be felt immediately. It would allow a parent to sue not only performers but promoters, so anyone who organized a concert or a play in Idaho would be facing the constant risk of an onslaught of lawsuits that could bankrupt them.
It’s clear that this isn’t an accident.
Rep. John Gannon, D-Boise, made a motion to remove this bit of language, recommending the rest of the bill for passage. The Republican majority rejected that motion, insisting on keeping the language about secondary sexual characteristics.
That’s why lawmakers should reject the bill. It is poorly drafted and so broad that it would have an enormous chilling effect on free expression.
But shouldn’t we do something to prevent sexually explicit performances in front of children? Of course. A law in place since the 1970s does just that.
Idaho Code 18-4105 bans uncovered genitalia or displays of sexual acts in public. These are clear lines for artists to follow so that they can predictably stay on the right side of the law, unlike the intentionally vague ones drawn up in the drag ban bill.
And as for non-explicit drag shows, there’s a solution for that, too. Parents can be responsible for deciding what kinds of shows their children should see. Don’t want your kid to see performers in drag? Don’t take them to a drag show. Problem solved.
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