Dan Kobil is a professor of constitutional law at Capital University Law School in Columbus.
The Ohio General Assembly is doing its best to ensure that the phrase, “It’s a free country,”becomes a dead letter here.Ohio.
Not content with enforcing Ohio’s criminal ban on supplying obscene materials to minors, culture war politicians are attempting to enact a vague and ill-conceivedlaw prohibiting drag shows and regulating women’s clothingin an unprecedented manner.
Drag performances,like other types of entertainment such as dance, theater, and film, are forms of artistic expression that is squarely protected by the U.S. Constitution.
Drag shows often have elements of humor,athleticism, and satire, but at their core, such performances are political statements that challenge societal assumptions surrounding gender. They satirize gender stereotypes by exaggerating and mocking notions of what is acceptable male and female behavior.
It is a basic precept of constitutional law that the government cannot dictate what viewpoints Americans are allowed to express surrounding gender or almost anything else. As the U.S. Supreme Court recently explained inChiles v. Salazarstriking down a Colorado law that banned therapists from engaging inconversion therapydiscouraging homosexuality, “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
The Ohio“Indecent Exposure Modernization Act,”which recently passed the House and is pending in the Senate, attempts to enforce gender orthodoxy under the guise of preventing “indecent exposure.” The Act defines a new type of indecency that must be confined to “adult cabarets.”
These are performances that are “harmful to minors” (a vague term that is open to interpretation by police) that feature performers “who exhibit a gender identity that is different from the performer’s . . . biological sex” using clothing, makeup, prosthetics, or other physical markers.
Think for a moment about what the General Assembly is trying to define as indecent, criminal speech.
It could be a performance of the film Mrs. Doubtfire starring Robin Williams as an elderly nanny who dresses as a woman to be near his children (if a police officer considered this “harmful to minors.”). It might be Shakespeare’s cross-dressing comedy As You Like It, where Rosalind disguised as a male Ganymede, falls in love with Orlando.
Source: Drudge Report
