March 2023: New “Anti-Drag” Law Goes Into Effect in April

Update Applicable to:
All businesses that host “Drag” events in the state of Tennessee.

What happened?
On March 3, 2023, Governor Bill Lee signed Senate Bill 3/House Bill 9 into law, enforcing restrictions on businesses that provide or host “Drag” events.

What are the details?
Effective April 1, 2023, this new law prohibits “adult cabaret performance,” which it defines as “adult-oriented performances that are harmful to minors…and that feature go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers”. Although the word “drag” is not explicitly in the text, the statute’s reference to “male or female impersonators” imply the term.

Tennessee Code Annotated Section 39-17-901(6) states “harmful to minors” means:

Quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse when the matter or performance:

• Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful, or morbid interests of minors;
• Is patently offensive to prevailing standards in the adult community as a whole concerning what is suitable for minors; and
• Taken as a whole, it lacks serious literary, artistic, political, or scientific values for minors.

Case law interpreting this is sparse, but the few cases addressing this statute focus on whether such content is sexual.

It is important to note the law does not outlaw drag performances or drag queens appearing in general. It only prohibits drag shows that are “harmful to minors” from being performed in public or places where minors under 18 are allowed.

The first offense may result in a Class A misdemeanor, which in Tennessee could involve jail time of up to 11 months and 29 days, fines of up to $2,500, or both. Subsequent offenses could result in a Class E felony, which could carry a prison sentence between one to six years in prison and a fine of up to $3,000.

For more information, please see the links below:

Senate Bill 3/House Bill 9

Article

What do employers need to do?
Businesses should review the links provided above and ensure that if they intend to host any adult classified events, they should ensure that it is in a private space and that anyone under 18 is restricted from the said event(s). If a business hosts an event and the police show up, it should contact its trusted legal counsel immediately.