If you have been perusing our weekly bill tracking reports, you have undoubtedly noticed a number of bills that, in one way or another, attempt to outlaw so-called “drag” performances in public places where minors might see them. The primary vehicle for the issue is SB 12, which was heard yesterday in Senate committee. SB 12 has three parts, the first two of which (1) impose a civil penalty of $10,000 per violation against a business that allows a sexually oriented performance to be presented in the presence of a minor, and (2) prohibit a city or county from authorizing a sexually oriented performance on public property or in the presence of a minor.
The third part, however, contains the core of the proposal. It establishes a new § 43.28, Penal Code, that, in addition to the civil penalty, criminalizes a “sexually oriented performance” on public property or in the presence of a minor. It defines a “sexually oriented performance” as “a visual performance” that (1) features either a nude performer or “a male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience,” and that (2) “appeals to the prurient interest in sex.”
As we have previously noted in this space, this language is exceptionally broad and applies to a wide range of artistic and theatrical performances. Accepting this language at face value and assuming that the proposal means to do that, we have to grapple with the very real possibility that something like this will become law and that actors and other performers could be subject to civil penalties of up to $10,000, criminal fines of up to $4,000, and jail time of up to one year (Class A misdemeanor). If that indeed occurs, the question becomes one of compliance. And this is where, in our view, the proposal runs headlong into a serious constitutional problem: the vagueness doctrine.
According to the Legal Information Institute at Cornell Law School, the vagueness doctrine is “[a] constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.” The doctrine “rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.” It both ensures that criminal laws give “fair notice” to citizens of “what is punishable and what is not” and “helps prevent arbitrary enforcement of the laws.” Put another way, a penal statute may be declared void for vagueness if an average citizen can’t tell from the language of the statute where conduct crosses the line from lawful to criminal.
Assuming for a moment that we are among the average citizens charged with complying with the penal statute proposed by SB 12, we confess that we have no idea what conduct is legal or illegal under the bill. The definition of “sexually oriented performance” refers to a “male performer exhibiting as a female, or a female performer exhibiting as a man.” What does “exhibiting” mean, and how does an individual of one biological sex “exhibit” as one of the opposite biological sex? The Merriam-Webster Dictionary tells us that “exhibit” means “to show or display outwardly, especially by visible signs or actions” or “to have as a readily discernible quality or feature.” If we rephrase the SB 12 definition using the common meaning of “exhibiting,” we get something like: “male performer showing or displaying outwardly as a female or having a readily discernible quality or feature of a female,” and vice versa.
This definition is not a model of clarity or specificity. What “visible signs and actions” can be said to be exclusively “male” or exclusively “female”? Similarly, what “readily discernible quality or feature” belongs exclusively to a “male” or exclusively to a “female”? Facial and body hair? Body odor? Mammary glands? The size of one’s biceps? The timbre of one’s voice? The way one walks? What happens if reasonable people disagree on whether a particular individual “looks” like a male or a female? Or maybe looks “more” like a male or a female and vice versa? Is it possible for a male to look “like” a female, based on purely on the appearance of a body, and run afoul of the statute? Based on the language, the answer would have to be “yes.”
The definition goes on, however, to qualify “exhibiting” by reference to “physical markers,” such as clothing or makeup and who “sings, lipsyncs, dances, or otherwise performs before an audience.” The first question is what types of clothing “mark” one as male or female. If a female wears a suit and tie and sings the national anthem at a football game, does that potentially trigger the statute? What about a bagpiper who wears a kilt and plays “Scotland the Brave” at Burns supper? Kilts are simply tartan skirts and are routinely worn by people of both sexes. If that’s the case, does a male who wears a skirt-like piece of clothing and does a traditional sword dance in a show violate the statute? How about a female who does the same thing? Does she violate the statute by performing a dance usually associated with males? What about shoes? Stockings? Hats? Jewelry? Lip gloss? Rouge? Eye liner? A certain writer once had a role as a supernumerary in Aida, which required him to wear facial makeup, a wig, and a short skirt thought to resemble the garb of an ancient Egyptian and take various poses on the stage. At the very best, this costuming produced a sexually neutral figure, if not an outright feminized one. Does that mean that our performance of Aida constituted a criminal drag performance? Under the vague the language of SB 12, it quite possibly could.
We could go on indefinitely, but there is an evident problem in making any hard and fast distinctions between “physical markers” that distinguish a male from a female. How would this be determined? We presume it would have to be done at four points: the police officer who arrests the performer, the prosecutor who reviews the case, the grand jury who returns an indictment, and the jury who ultimately decides guilt or innocence. There is almost no chance that each of these parties will have the same idea or standard for “exhibiting.” And that’s the whole difficulty in a nutshell: “marking” an individual will have to fall back on stereotypes that are grossly imprecise, inaccurate, and unfair to individual human beings, who may not see themselves that way at all. It is very hard to discern how the language in the bill could be made sufficiently specific to give an average person reasonable notice of prohibited conduct. It’s simply in the eye of the beholder and irreducible to stable social norms.
But the bill also requires that the performance appeal to a “prurient interest in sex.” Although there is no definition of this in either SB 12 or elsewhere in Texas law, the U.S. Supreme Court has defined the term as “an excessive, illicit, unhealthy, or unwholesome interest in sex.” See Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985). Setting aside for a moment what any of these terms mean on their own, the court has found that a statute using this terminology may survive a vagueness challenge, though even the majority struggled with drawing the line between a healthy and wholesome interest in sex and an unhealthy or unwholesome interest in one.
This term is rolled into Section 43.21(1), Penal Code, which defines “obscene” as “material or a performance that: (A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex . . . .” The statute goes on to incorporate U.S. Supreme Court precedents that establish standards for obscene material or performances, which require the material or performance to depict or describe: (1) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or (2) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of human genital organs; or (3) taken as a whole, lacks serious literary, artistic, political, and scientific value. This statute has been on the books in one form or another since 1974.
Section 43.21 gives us something to go on. What if SB 12 were changed to incorporate the obscenity definition and apply it to a performance in a public place in the presence of a minor? That would probably work because we at least have about 50 years of judicial interpretation of that definition and its application. We realize that there is a strong political pressure from some quarters to extinguish “drag performances” in particular, and simply applying the Section 43.21 standard would not accomplish that. If nothing else, adding an exception for a performance with “serious literary, artistic, political, and scientific value,” as in the obscenity statute, would take care of a large part of the concern over the bill, but it might also be a bridge too far for the bill’s proponents. In that case, we may simply be on a constitutional collision course that may eventually resolve the issue, but create untold levels of confusion and conflict in the meantime.
