“Gutted” Arkansas bill no longer targets drag performers or LGBTQ community, activists say
Rep. Mary Bentley: Legislation heavily amended to survive a court challenge
Tien Estell (front), an organizer with transgender advocacy group Intransitive, leads a flash mob in front of the Arkansas Capitol on Jan. 23 to protest Senate Bill 43, which would have defined “a drag performance” as an adult-oriented business. (Tess Vrbin/Arkansas Advocate)
Arkansas legislators amended a bill that originally would have restricted where drag performances can be held but now does not mention the word “drag” at all.
Activists who have opposed Senate Bill 43 since it was introduced in January say the heavily amended language no longer targets LGBTQ Arkansans.
The bill was amended Thursday for the second time in a week. It defines an “adult-oriented performance” as one “that is intended to appeal to the prurient interest,” meaning overtly sexual, and features complete or partial nudity and the exposure of real or prosthetic breasts or genitalia.
Drag performances do not include the things described in the bill, and the state already has laws in place about public nudity and lewd behavior, said M.D. Hunter, who performs as the drag queen Athena Sinclair.
“We still have to follow laws, we still have to cover up, and most of us have on more clothes than people in the audience,” Sinclair said in a Friday interview. “It’s just an aspect of [legislators] not knowing what drag really is.”
The bill’s primary sponsors, Sen. Gary Stubblefield (R-Branch) and Rep. Mary Bentley (R-Perryville), have said the bill aims to protect children from sexual content.
Originally, the bill defined drag as “exhibit[ing] a gender identity that is different from the performer’s gender assigned at birth using clothing, makeup, or other accessories that are traditionally worn by members of and are meant to exaggerate the gender identity of the performer’s opposite sex” and singing, dancing, lip-syncing or performing in other ways in front of an audience.
Opponents of the bill said the language was vague enough to criminalize any kind of performance or self-expression by a transgender or nonbinary Arkansan, whether in public or in private.
An amendment adopted Monday redefined drag as a performance in which someone “exaggerates sexual aspects of the masculine or feminine body for entertainment purposes.”
This amendment did “nothing to clarify the law or its enforceability,” American Civil Liberties Union of Arkansas policy director Sarah Everett said Wednesday before the House City, County and Local Affairs Committee.
The amended House bill targets all sexual performances, so it would not have to stand up to strict scrutiny.
– Rep. Mary Bentley (R-Perryville), the House sponsor of Senate Bill 43
Both previous versions of the bill classified a drag performance as an adult business similar to pornography, strip clubs and other sexually explicit content and activities. Such businesses are not allowed to be located within a certain distance of schools, parks and other places children frequent.
The current version of the bill would dictate that an “adult-oriented performance” may not take place on public property, allow minors to be present or use any public funds.
This is the first version of the bill to mention the use of public money.
The original version of the bill passed the Senate on a party-line vote. But the heavily amended legislation will have to go back through committees and be put up for a vote in both chambers, essentially restarting the lawmaking process.
Sinclair appeared in drag before the Senate City, County and Local Affairs Committee on Jan. 19 and in plainclothes before the equivalent House committee on Wednesday to speak against Senate Bill 43.
Later on Jan. 19, Sinclair led a rally that attracted about 200 people to the Capitol steps to protest the bill. The rally included a performance of “Seasons of Love” by a group of dozens, including drag performers and transgender Arkansans, since Sinclair and other organizers said the bill could make such a performance illegal.
Transgender advocacy group Intransitive Arkansas, which helped coordinate the rally, again used performance as protest by holding five flash mobs throughout Central and Northwest Arkansas on Jan. 23, the day before the bill passed the Senate.
Intransitive advocacy and resource organizer Tien Estell led about 15 people in a flash mob on the Capitol steps.
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In an interview Friday, Estell said Senate Bill 43 is “still a bill about moral policing,” but the protests and other organized opposition contributed to the bill being “gutted.”
“[We worked] to get heat on this, to get eyes on this, to stand up and say we’re not going to put up with this,” Estell said.
Bentley, Stubblefield and other legislators said in committee hearings and in House and Senate floor discussions that they had received several phone calls and emails from people who opposed the bill. Estell said this was part of the statewide campaign to fight the legislation.
“It is working, and we want people to know that this is scary and it’s going to be a long session, but what we do makes a difference,” Estell said.
Bentley said Wednesday that many of her constituents have expressed concerns to her about kids’ presence at drag shows. However, Sinclair said Bentley’s constituents should not be worried about this because there are no drag shows in the district, which is made up of Perry County and parts of Faulkner, Saline and Yell counties.
Attorney General Tim Griffin’s office, Gov. Sarah Huckabee Sanders’ office, and the Alliance Defending Freedom all helped write the bill, Bentley said. ADF is a conservative religious-freedom advocacy group that has opposed LGBTQ rights efforts.
Bentley said Wednesday that she believed the second draft of the bill would hold up in court. Several witnesses who spoke against the bill disagreed.
In a Thursday evening Facebook post, Bentley said the third draft of the bill was the only one that would not be struck down by a judge.
“The original Senate bill targets expression based on its content — it singles out drag shows but shockingly doesn’t apply to other sexual performances,” Bentley wrote. “Thus, it would have to survive strict scrutiny (while ironically doing less to protect children than the amended House bill), and would not survive a First Amendment challenge. The amended House bill targets all sexual performances, so it would not have to stand up to strict scrutiny (while simultaneously protecting more children).”
Bentley and Stubblefield did not respond to requests for comment on Friday.
Sanders and Griffin both support the amended bill, according to emailed statements released by their spokespeople.
“As Arkansas’s top law enforcement officer, I am deeply committed to protecting our children, and that’s why I proposed an amendment to SB 43 to strengthen the bill and cure its constitutional infirmities,” Griffin said.
Sanders “will continue to take steps and actions that she believes protect the children of Arkansas,” her spokeswoman Alexa Henning said.
Bentley also said in her Facebook post that the original version of Senate Bill 43 would weaken the state’s defense of the Save Adolescents From Experimentation (SAFE) Act, a 2021 law she sponsored.
The SAFE Act prohibits physicians from providing “gender transition” treatments like hormones, puberty blockers and surgeries to those under age 18. Four transgender Arkansas minors, their families, and two physicians who provide gender-affirming care to youth challenged the SAFE Act in court with help from ACLU attorneys.
U.S. District Judge James Moody heard the trial in late 2022 and has yet to issue a verdict. The trial was the first in the U.S. over a ban on gender-affirming health care for transgender youth.
Moody previously enjoined enforcement of the law in July 2021. A panel from the 8th U.S. Circuit Court of Appeals upheld the injunction, and the full court later refused to rehear the ruling.
This is scary and it’s going to be a long session, but what we do makes a difference.
– Tien Estell, advocacy and resource organizer for Intransitive Arkansas
Estell said other bills that target the LGBTQ community are still moving through the Arkansas Legislature. Bentley is also sponsoring House Bill 1156, which would restrict bathroom use in public schools based on students’ sex assigned at birth. The bill passed the House on Wednesday and is headed to the Senate.
Sen. Dan Sullivan (R-Jonesboro) is sponsoring Senate Bill 81 to amend the law concerning obscene materials loaned by a library and Senate Bill 71 to eliminate affirmative action in Arkansas.
The affirmative action bill passed the Senate Committee on State Agencies and Governmental Affairs on Wednesday, and the library bill is currently inactive in the Senate Judiciary Committee.
Both of Sullivan’s bills are a “direct attack” on marginalized groups, Estell said, but LGBTQ Arkansans are “celebrating this win” over Senate Bill 43.
“It’s really important to remind people that there are days we can sit back and seize our joy and know that what we did paid off,” Estell said.
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