By: Jordan Uter
Let’s talk about communication: how we express or exchange information by speech, writing, gestures, or conduct. How we familiarize ourselves with each other. Constitutionally, our freedom to communicate is broad. We don’t fear government retaliation unless we have defamed another,[1] incited a violation of the law,[2] or made or distributed obscene materials.[3] Importantly, our first amendment right includes the freedom of expression through symbolic acts.[4] Yet, recently, that freedom of expression would be violated by authoritarian lawmakers interested in dictating the expression of gender non-conforming clothing.
At the beginning of this year’s legislative session, conservative members of the Arizona senate filed bills targeting the gender-fluid community. SB 1026 would prohibit the distribution of public funds to any person or entity, including state-run facilities, that operate a drag show.[5] SB 1028 would forbid any drag shows from occurring in public places or locations where a minor could view them.[6] These bills would effectively ban drag shows from public life in Arizona and deny those who participate or attend the freedom to assemble peaceably amongst those who share community. Though it seems that the bills are unlikely to become law with Governor Hobbs now in the Governor’s Mansion, if similar bills were to become law in Arizona or anywhere in the nation, they are likely to violate the First Amendment. In the event bills such as SB 1026 or SB 1028 are codified into law, activists groups should bring free speech violation claims to complement inevitable antidiscrimination claims.
Generally, if the government regulates a particular speech, suppressing it because of its content, that regulation will receive strict scrutiny from courts and be considered unconstitutional. However, governments can prove the law has a compelling interest and narrowly tailor that interest much as possible.[7] With state legislatures forcing gender obedience across the country, Jeffrey Kosbie argues we can, and should, bring first amendment claims on the basis that regulating dress and appearance deviating from gender norms suppresses an individual’s right to express themselves,[8] therefore violating the first amendment.
For example, in Spence v. State of Washington, the defendant displayed his American flag out their window, with peace symbols affixed to the flag; the defendant’s reasoning for the peace symbols was to let his community know he believed America “stood for peace.”[9] As a result, the state of Washington convicted him under a statute prohibiting the display of the American flag with “superimposed figures, symbols, or other extraneous material.”[10] On appeal, the Supreme Court held the Washington statute unconstitutional because the nature of the defendant’s activity, combined with the factual context of the environment, led to the conclusion he engaged in a form of protected expression.[11] Further, the Court noted that the defendant did not engage in trespass or disorderly conduct, was not breaching the peace, did not impose his ideas on a captive audience, and was not intending to incite violence.[12] In sum, the Court found the defendant’s conduct was “sufficiently imbued with the elements of expression,” and the Washington statute suppressed the defendant’s conduct because of the content of his expression.
Moreover, in Tinker v. Des Moines Independent Community School District, two teenage students attended school wearing black armbands to protest the Vietnam war.[13] The school administrators had a policy prohibiting students from wearing armbands and would suspend the students if they refused to remove them.[14] The students were aware of this policy and attended school with the armbands anyway, and the administrators promptly suspended them.[15] The Supreme Court held the policy was an unconstitutional prohibition of the students’ right to expression.[16] The school must show the cause of the policy was something more than a mere desire to avoid the discomfort and unpleasantness of an unpopular viewpoint.[17]
Furthermore, in Doe v. Yunits, the plaintiff began to express her gender identity at school by wearing makeup, wigs, clothing, and accessories consistent with her gender identity.[18] The school had a dress code that prohibited clothing that could be distracting to the educational process or affect the safety of the students.[19] After continual suspension through her eighth-grade year, the local public high school administrators informed the plaintiff that she would not be permitted to attend the school if she continued to wear outfits such as padded bras, skirts, dresses, or wigs.[20] The Superior Court of Massachusetts held the school’s policy towards the plaintiff’s clothing was unconstitutional and that her wardrobe at school was protected speech.[21] The court reasoned that by wearing clothing typically associated with femininity, the plaintiff was expressing or communicating her identification with the female gender.[22]
These examples establish that government prohibition of conduct because of its symbolic content violates a person’s right to express themselves freely and accordingly is unconstitutional. In his skillful analysis of the first amendment and gender theory, Jeffrey Kosbie argues that under established free speech doctrine, governments are prevented from targeting conduct based on its nonconformity with gender norms of masculinity and femininity.[23] To support his thesis, Jeffrey determines dress, appearance, and behavior communicate the social meaning of gender and thus should be understood by courts as communicative under the First Amendment.[24] Notably, Jeffrey determines that gender nonconformity expresses a message because it violates gender expectations and communicates opposition to the gender binary.[25] We are taught the social norms of gender at an early age in how males or females behave, dress, and speak to identify people.[26] However, gender is not simply a matter of being male or female; it is a fluid social construct influenced by norms, expectations, and stereotypes.
SB 1026 and 1028 are facially invalid. Meaning if passed into law, the whole statute would be unconstitutional. SB 1026 withholds public funds not only to public facilities but to private entities and facilities that receive public funds.[27] Lambda Legal Staff Attorney Kell Olson provided an example of a youth center that allows drag shows, but receives state funding, would be cut off.[28] Although drag is a performance and the individuals who partake may identify as a different gender than their personae,[29] they communicate opposition to the gender binary. If passed into law, SB 1026 would suppress the conduct of drag performers in any facility that receives public funding. Similar to the school district in Tinker, Arizona, would be prohibiting a form of expression and would need to show “more than a mere desire to avoid the discomfort of and unpleasantness” of an activity they disagree.
SB 1028 would prohibit drag shows in any public space and locations a minor could view.[30] For example, some drag performers have mentioned that the bill could impact events such as Phoenix Pride.[31] Other than being vague and too broad, SB 1028 criminalizes drag performers for communicating opposition to the gender binary. Like the defendant in Spence, drag performers engage in a form of protected speech because the conduct is “imbued with elements of expression.”[32] As a law, the statute would suppress the conduct of drag performers because the content of their expression is in opposition to the gender binary. Moreover, the bill has no claim to exceptions to the First Amendment because it is not narrowly tailored to meet an interest of the public, such as safety or privacy. Drag performers are not engaging in trespass, inciting violence, breaching the peace, or imposing their views on a captive audience.
Our collective right to freedom of speech and expression is under attack by authoritarian actors within Arizona and the United States. Using the powers of the state to criminalize a whole community because they do not abide by outdated notions of gender is embarrassing, pathetic, and inhumane. We must join our friends in the drag and LGBTQIA+ communities to protest these bills. If passed, it is unlikely authoritarian governments will stop with criminalizing only the drag community. Instead, they will continue to outlaw forms of speech unaligned with their views.
I want to encourage you to reach out to a local LGBTQIA+ or mutual aid organization to provide support in any way possible. That includes making calls to your local representative, agitating in the streets, or boycotting corporations supporting public officials in favor of this legislation. I also want to encourage you to shield yourself from overwhelming cynicism. While valid, too much can blind us to our collective power as citizens and, more importantly, as human beings. The governments discussing and passing legislation similar to SB 1026 and 1028 must feel our united disapproval and demand for inclusivity. Let us join together, one person with the other, each person for the other. Dreaming and fighting for justice.
Jordan (he/him) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. His legal interests include criminal justice, voting rights, and issues related to data privacy. His personal interests include basketball, yoga, and meditation.
[1] Gertz v. Robert Welch, Inc., 418 U.S. 323, 323, 94 S. Ct. 2997, 2999, 41 L. Ed. 2d 789 (1974)
[2] Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S. Ct. 1827, 1830, 23 L. Ed. 2d 430 (1969)
[3] Miller v. California, 413 U.S. 15, 36, 93 S. Ct. 2607, 2622, 37 L. Ed. 2d 419 (1973)
[4] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969)
[5] SB 1026, 56 Leg., 1st Sess. (AZ. 2023)
[6] SB 1028, 56 Leg., 1st Sess. (AZ. 2023)
[7] United States v. O’Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968)
[8] Jeffrey Kosbie, (No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech, 19 Wm. & Mary J. Women & L. 187, 254 (2013)
[9] Spence v. State of Wash., 418 U.S. 405, 406, 94 S. Ct. 2727, 2728, 41 L. Ed. 2d 842 (1974)
[10] Id.
[11] Id.
[12] Id.
[13] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969)
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199, at *3 (Mass. Super. Oct. 11, 2000)
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Jeffrey Kosbie, (No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech, 19 Wm. & Mary J. Women & L. 187, 254 (2013)
[24] Id.
[25] Id.
[26] Id.
[27] SB 1026, 56 Leg., 1st Sess. (AZ. 2023)
[28] Alex Gonzalez, AZ Senators Aim to Restrict Drag Shows with New Bills, Public News Service (Jan. 12, 2023), https://www.publicnewsservice.org/2023-01-12/lgbtqia-issues/az-senators-aim-to-restrict-drag-shows-with-new-bills/a82319-1
[29] Understanding Drag, Nat’l. Cen. For Transgender Equality (Apr. 28, 2017), https://transequality.org/issues/resources/understanding-drag
[30] SB 1028, 56 Leg., 1st Sess. (AZ. 2023)
[31] Id.
[32] Id.
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