Rewritten ‘drag’ bill passes Arkansas House, will return to Senate

The Arkansas House passed a heavily amended bill Monday that prohibits “adult-oriented” performances from public property or using public funds.

The original version of the bill sought to restrict drag performances, but the version passed by the House on a party-line vote doesn’t mention the word “drag.”

Senate Bill 43, which was rewritten Thursday, 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. The bill dictates that these performances may not take place on public property, allow minors to be present or use any public funds.

Two previous versions of Senate Bill 43 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.

Activists who have opposed the bill since it was introduced in January said last week that the new language no longer targets drag performers, transgender and nonbinary Arkansans or the LGBTQ community as a whole.

However, during Monday’s House floor discussion, Rep. Mary Bentley (R-Perryville) reiterated her past statements that she and her constituents believe drag is overtly sexual and a threat to children’s “innocence.”

Bentley is the primary House sponsor of Senate Bill 43. She read a letter she said she received from a resident of Batesville, which is not located in her district.

The writer said he and his family chose Batesville as “a safe harbor in which to weather the current tide of crazy culture wokeness and progressivism,” but “this disease” came to the city in June 2022 via an LGBTQ pride parade that featured a sexually provocative drag performance in front of children.

“The further erosion of our society must come to an end… What happens when these pillars fall?” Bentley read from the letter.

The bill passed with 78 yes votes, all Republicans, and 15 no votes, all Democrats. Two Democrats voted present and one did not vote; three Republicans did not vote and one was absent.

House Minority Leader Tippi McCullough (D-Little Rock), who voted no, said she still saw “lots of problems” with the bill, such as the lack of a clear definition of public property or any type of penalties for violation.

“It’s very vaguely written, and it’s redundant as far as a lot of the [existing] obscenity laws go,” McCullough said. “I’m still not satisfied that it doesn’t affect events, concerts, plays or other artistic endeavors.”

Bill background

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. Activists held performances by drag artists and transgender Arkansans as protests in multiple cities, including on the Capitol steps.

The original version of the bill passed the Senate City, County and Local Affairs Committee unanimously Jan. 19 and passed the Senate on a party-line vote Jan. 24.

The bill was first amended Jan. 30 to define drag as a performance in which someone “exaggerates sexual aspects of the masculine or feminine body for entertainment purposes.” That version of the bill passed the House City, County and Local Affairs Committee on Wednesday in a split vote after more public dissent.

Bentley said Thursday in a Facebook post that the third draft of the bill was the only one that would not be struck down in court for violating the First Amendment right to free expression.

“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).”

​​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.

Sanders and Griffin both support the amended bill, according to emailed statements released Friday by their spokespeople.

Because of the near-total changes to the bill, it is expected to be sent back to a Senate committee before the full chamber must vote on it again.