Queers, Our Fight is Against Anti-Sex Work Laws
Pt. II
When U.S. District Court Judge Thomas Parker found Tennessee’s anti-drag law, the “Adult Entertainment Act,” unconstitutional in June 2023, it was a triumphant moment in a year of dismal anti-LGBTQ legislative attacks. Media coverage of Tennessee’s anti-drag bill (AEA) and the Friends of Georges, Inc. v. Mulroy case frequently noted that the law was blatantly targeted at LGBTQ+ communities and performers. Fewer delved into how anti-drag legislation, such as the AEA, is built upon a foundation of anti-sex work laws and policies.
How do anti-sex work laws and policies inform recent anti-LGBT legislation and legal cases, as well as haunt efforts to contest them?
The AEA criminalized the performance of “adult cabaret entertainment” on public property, or “any location where the adult cabaret entertainment could be viewed by a person who is not an adult." It did so by adding the phrase, “male or female impersonators,” to the list of already proscribed forms of adult entertainment, namely “exotic dancers, go-go dancers, and strippers.” The AEA amended state codes that regulate the location and operation of adult entertainment establishments (TN Code 7-51-1401) and drew upon the state’s existing criminal codes against obscenity. Sponsors of the measure argued that the state already prohibits public performances of adult entertainment, on the basis that such performances would be “harmful to minors.”
The bill was an attempt to explicitly include drag within state civil and criminal codes that regulate commercial sex. As Sen. Johnson (sponsor of AEA) put it, the “AEA doesn’t ban that type of entertainment. It simply says it can’t be done on public property, and if it’s going to be done in a private venue, then you have to ensure that children are not present.” The AEA was undoubtedly a transphobic and homophobic political attack meant to stall what its sponsors probably perceived to be the greater acceptance of LGBTQ cultures within mainstream society. These legislators, and whatever constituencies they claim to represent, don’t want their kids going to see drag at the local Pride event and starting the slow, but inevitable, process of recognizing their parents for the pathetic bigots they are.
The recent spate of anti-drag laws calls for a deeper investigation into the sociolegal reasoning deployed by their sponsors. AEA supporters see it this way: for the good of society, we heavily regulate and restrict “adult entertainment” – to ensure that it’s not located near places associated with children, family, religion, or home; to keep it out of sight and away from minors. Drag is adult entertainment. For drag to be available to minors is, to them, an egregious violation of that sociolegal framework. Tennessee Rep. Clemmons noted that “nobody wants a minor in an establishment with strippers. There are laws prohibiting that.” Rep. Todd was indignant that “local ordinances” meant to keep adult entertainment out of the public eye are not being used against Pride festivals. Senator Johnson described the AEA as “simply trying to apply the same standards to the adult-themed sexually explicit entertainment that can take place in these heavily regulated establishments.”
One detects a note of resentment here. In other words, “Why should queers get to party in public while we straight men can’t?” You can almost hear these dudes griping about “special rights” as they drive to the nearest gentleman’s club in the hopes of summoning a hard-on while undertipping the women working that shift.
To conservatives, drag is always/already adult entertainment and should be confined to sequestered spaces. A question that emerges in these cases and political debates then, is whether drag performers should be regarded as adult entertainers: are drag performers like strippers?
Regulating Adult Entertainment
The stakes of this question matter because adult entertainment and entertainers are subject to extensive, often onerous, and rarely questioned regulations at the municipal and state levels. While the regulatory vicissitudes vary, adult entertainment regulations typically take the form of policies aimed at the bodies and conduct of performers or zoning and licensing laws focused on the spatial location, operation, and scale of the local industry. Since the 1970s, local governments have been keen to limit adult entertainment (why is a question for another day).
Erotic dancing may be “legal,” but it’s complicated.
Over the last 50+ years, the Supreme Court has found live adult entertainment (erotic dance) to potentially be a form of constitutionally protected speech. Many people in the industry, along with scholars, have long argued that erotic dance contains artistic expression and sought legal protection through recourse to the First Amendment. In a series of rulings dating to the 1970s, the Supreme Court carved out some limited constitutional protection for erotic dance, on the grounds that it’s symbolic speech or contains expressive activity. As a result, local governments have been hamstrung in their ability to outright ban erotic dance itself.
Somewhat hamstrung. The Supreme Court has simultaneously upheld the right of governments to place restrictions on performers. In cases such as Barnes v. Glen Theatre, Inc. (1991), the Supreme Court found that states can criminalize fully nude dancing under the logic that public indecency laws fulfill the legitimate governmental interests in “protecting order and morality.”
More powerfully, the Supreme Court has given the green light to zoning regulations, which determine the location and operation of adult entertainment businesses. In cases such as Renton v. Playtime Theatres (1986), the Court granted local governments wide latitude to regulate adult entertainment under the auspices of mitigating negative “secondary effects.” Secondary effects doctrine rests on the premise that adult entertainment businesses cause harmful secondary effects to the surrounding area; namely that they depress property values or increase crime (prostitution is typically singled out). Secondary effects doctrine provides a nice end-run around any potential First Amendment legal challenges to policies that discriminate against adult entertainment businesses. This logic allows cities to regulate not the content of performance, but business operations based on a compelling government interest in controlling land use, protecting public order, and mitigating criminal activity. It’s worth noting that whether adult entertainment businesses cause these harmful secondary effects is still subject to considerable debate.
The question of causation however is irrelevant, as the Supreme Court allowed local governments to regulate adult entertainment without having to conduct independent research into secondary effects. In essence, the Court has given the government great leeway to minimize the presence of adult entertainment. Many cities have policies that either spatially disperse or concentrate adult entertainment businesses. In addition, many local governments prohibit adult entertainment businesses from operating within a few thousand feet of schools, churches (sometimes places of worship), childcare centers, or residential zones. Under a supposedly value-neutral approach, secondary effects doctrine has allowed policymakers and city elites to socially, and often spatially, confine adult entertainment to the margins.
While supposedly content-neutral, secondary effects doctrine also has a material impact on the work of erotic dance. Anyone who has worked in the stripping industry can tell you of the convoluted nature of adult entertainment laws. Municipal and state laws that prohibit full nudity, or dancers from touching their bodies or the bodies of customers, or from leaving the stage or performing in VIP rooms, are all justified under the logic of prohibiting negative “secondary effects.”
Such laws, and the legal reasoning behind them, have been criticized by workers, scholars, and some members of the judiciary as highly capricious, incoherent, and gender discriminatory.
Many have argued that jurisprudence about erotic dance (and adult entertainment more broadly) has been indelibly marked by the latent biases and social mores of the white, straight men who overwhelmingly make and interpret the laws; including anxieties about the class-mixing common to commercial sex establishments as a potential source of disorder, Christian condemnation of sexuality outside the hetero-marital bed, or a patriarchal desire to control women’s bodies and sexuality.
One can’t help but wonder at the reasoning that led the Court to decide that a swathed vs. bare snatch somehow spells the bright line between public order and chaos, and thus let our esteemed lawmakers set the dress code for countless women workers.
The question of secondary effects doctrine also emerged in the AEA case.
The Defendant, Tennessee Attorney General Steve Mulroy, attempted to circumvent strict scrutiny by invoking secondary effects doctrine. He argued that the AEA is merely a “time, place, and manner restriction,” that seeks to protect “children from obscene content…and the secondary effects associated with exposure to such content, namely an increase in ‘sexual exploitation crimes.’” In other words, the AEA should be upheld like similar adult entertainment zoning regulations. Judge Parker disagreed, pointing out that the regulatory objects in Renton were the business operators, not performers; the AEA impermissibly targets the expressive conduct of performers.
The judge is surely right that Renton was not focused on penalizing live performers. Yet, other adult entertainment cases (and policies) have drawn on Renton’s validation of secondary effects doctrine to restrict the conduct of erotic dancers (such as laws that require one to stay several feet away from a customer). This is not a critique of the judge’s citational practice; examining Renton’s impact is not his task. Nor is this a defense of the Tennessee’s Attorney General’s arguments. What is interesting, however, is the lack of public discussion about how secondary effects doctrine does, in practice, license routine governmental authority over the speech/conduct (and working conditions) of erotic dancers.
The sexual conservatism built into adult entertainment zoning policies is why homophobic lawmakers turned to them. Adult entertainment policies imagine the government as a patriarchal protector of “innocents” (wives and children)– and the property values of bourgeois families—who might be vulnerable to the corrupting influence of “lewd” performance.
Queers should be concerned about the way the law currently regulates adult entertainment, as it provides a labile tool for governmental gender and sexual control and conservative efforts to curb public sexual cultures.
It's Art!
Legal critics have carefully and aptly dissected the Tennessee AEA case. But few have taken seriously the parallels between anti-drag and adult entertainment laws. Perhaps because the AEA case, culturally and legally, turned upon challenging the effort to classify drag alongside adult entertainment.
For instance, David Taylor – an owner of gay bars and employer of drag performers who was cited in the case as an opponent of the AEA– expressed his concern that the AEA “places male and female impersonation in the category of strippers, go-go dancers, and exotic dancers.” Taylor’s discomfort with the likening of drag and stripping suggests a disease with queer cultural practices being associated with commercial sex.
Journalists and media commentators also questioned the idea that drag performance is equivalent to erotic dance or adult entertainment. News sources characterize drag performers and queer/trans people as bristling at the suggestion that their performances are the same as strippers. It’s hard to discern to what extent media coverage of the issue reflects the complexity of LGBTQ people’s views on the relationship between drag and erotic dance. But it’s undeniable that defenders of drag sought to distance it from stripping and recuperate it as art. The implication is that adult entertainers do not engage in artistic expression.
And yet, adult entertainment jurisprudence has often focused on questions of whether erotic dance contains artistic merit. It was not that long ago that strippers and adult entertainment business owners were raising similar First Amendment questions about laws that sought to prohibit nude or erotic dancing.
In cases such as California v. LaRue (1972) and Doran v. Salem Inn, Inc. (1975), the Court begrudgingly held that erotic dance could be “protected expression” under the First and Fourteenth Amendments. The judiciary has recognized that erotic dancing contains expressive activity and, therefore, does not meet the legal definition of obscenity. Public discourse about anti-drag bills positions drag as an art form in contrast to erotic dance, even though a precedent for protecting performers’ rights could potentially be found in adult entertainment cases.
What might the absence of any reference to adult entertainment cases tell us? It’s not surprising that many lack familiarity with laws and policies governing adult entertainment. Beyond this, the refrain of “drag-is-art” speaks to the ways that sexuality is generally treated with social suspicion and requires the defense of art to render it palatable. Collectively, the erotic dance and anti-drag cases point to what Margot Kaplan has described as the “sex-negative bias” entrenched in the US legal system. Our right to sexual speech and access to sexual culture rests upon a fragile basis, one that forces sexual and gender outsiders into a weak and defensive position.
In his ruling, Judge Parker seconded the objection to classifying drag performers alongside strippers. In response to the Attorney General’s argument that the AEA simply borrows language from the earlier Adult-Oriented Establishment Registration Act, he offered an interesting historical aside. Parker wrote:
“while including ‘male or female impersonators,’ in a list with ‘topless dancers, go-go dancers, exotic dancers, strippers…or similar entertainers may have escaped many readers’ scrutiny in 1987, it may not do so with ease in 2023. In 1987, homosexual intercourse was considered sodomy and was a crime in Tennessee, ‘Don’t Ask Don’t’ Tell’ had not been enacted (much less repealed) for our military, and same-sex couples did not have a recognized fundamental right to marry. The phrase ‘similar entertainers’ seems to refer to dancers traditionally associated with ‘adult-oriented businesses.’ In 1987, associating ‘male or female impersonators’ in that category may have called for little or no concern. This Court views categorizing ‘male or female impersonators’ as ‘similar entertainers’ in ‘adult-oriented businesses’ with skepticism.”
In other words, queer sex is no longer illegal, queers can serve openly in the military, queers can even marry. While commercial sex remains criminalized and involvement in sexual labor still significantly shapes one’s ability to access the privileges of citizenship: from immigration laws that prohibit entry to current or former prostitutes; military codes that criminalize participation in commercial sex or regulate sex workers near military bases; to federal legislation that constricts sex workers ability to access financial institutions, the Internet, and participate in civil society.
Queers are no longer sullied by sexual stain; sex workers still are.
Parker’s brief genealogy points to the diverging legal trajectories of LGBTQ and sex worker movements in recent years. LGBTQ political movements have made stunning social progress and, in doing so, have moved LGBTQ lifeworlds from the social margins to the mainstream. Queer cultural practices have been able to migrate beyond their historical haven of gay bars. To paraphrase the White Night Riot slogan, drag has moved “out of the bars and into the streets,” or public libraries and television networks. Queer culture is no longer seen as inherently “sexually explicit” or appealing to the “prurient interest.” Indeed, the repeated media and judicial references to drag as an artistic performance that challenges gender roles are evidence of the ways that queer critiques have become culturally widespread.
If sex workers had been able to make a similar path toward social acceptance, what would become of laws like the AEA and AERA? Would we rethink the assumption that adult businesses ought to be kept at a physical distance from churches, schools, and residences? Or is it difficult to imagine sex workers progressing in this manner because commercial sex must categorically serve as the legal “outer ambit” of protected speech (City of Erie v. Pap’s A.M.)? The AEA case makes plain that while queers have been able to successfully argue themselves out of the legal nether regions of obscenity, doing so has sometimes required defining queer life in opposition to sex work/ers.
Our Collective Fight
The impulse to sever erotic dance and drag belie as much as they reveal about the two mediums. Drag and stripping share considerable historical, cultural, and artistic overlap. Erotic dance and performance were historically practiced on the same stages and in the same urban districts as drag. Culturally, drag and erotic performers share a disreputable social status. Artistic, in that both often employ a similar repertoire of gestural codes and bodily movements, appropriate from popular culture, and each has created their distinct contributions to the fields of dance and entertainment. Strippers - including cisgender women- engage in parodic subversion of gender. While drag may play up the supposed incongruity between performers of one sex/gender performing another gender, strippers also hyperbolically seize upon and embellish the codes of femininity, albeit from within the confines of the category. Indeed, some drag performers have noted the similarities:
One drag performer described their mother, a former stripper, as, “put[ting] on these big production numbers with a lot of impersonations. Cher was a big one for her. She was basically doing drag in the strip clubs.”
At the end of the day, the most critical similarity between drag and erotic dance is that they are both JOBS. Drag and stripping can certainly be experienced as venues of creative expression for performers. We will continue to need legal arguments that highlight how these activities are forms of expressive speech that should not be subject to criminal penalties. But for many people, stripping and drag are primarily sources of income.
Working is often degrading; having to go to court to argue for the right to perform your trade is even more so.
It is good that plaintiffs, litigators, and advocates are making the strategic and necessary legal arguments that laws like the AEA are unconstitutional and that judges are striking them down. But we miss a political opportunity if we don’t consider the sociolegal implications of how we contest drag bans – in and out of the courts.
With anti-drag bills, the Right seeks to rezone queer culture back into the sociolegal terrain of obscenity, to recodify queers as sexual deviants akin to sex workers.
In response, queer advocates argue that drag should be seen as legally and culturally distinct from adult entertainment/erotic dance. In striking down these laws, courts have agreed that drag and adult entertainment are not the same thing. But the legal architecture embedded in anti-adult entertainment and obscenity regulations remains intact, ready to be marshaled by Christofascists and others. Law enforcement may no longer aggressively patrol LGBTQ+ spaces and communities in the way it once did, but as long as our legal system remains anti-commercial sex, queers will remain vulnerable.
Laws that target “lewd conduct,” adult entertainment zoning restrictions, anti-obscenity laws, and legislation that censors digital sexual speech—all of these can be, and are, wielded against LGBTQ+ people.
The AEA case underscores two things: the legal rights of LGBTQ people and sex workers are densely interrelated, and advances made by LGBTQ movements in recent years have made it politically and socially risky for LGBTQ+ political movements to embrace this connection. To develop an effective political response to our opponents we need to better understand the history of how this came to be—what has cleaved LGBTQ and sex worker movements apart?