This March brings good news in the war on drag: federal Judge Lee H. Rosenthal from Houston’s Southern District ruled with the Texas A&M Queer Empowerment Council on an upcoming drag performance titled “Draggieland” that the show was safely protected under the First Amendment as theatrical expression. But why has drag been targeted so often in recent years? Does it affect transgender rights?

A Short History on Drag

“Drag” is the common term used regarding cross-dressing performances, where talented (and occasionally untalented) individuals use a combination of clothing, gender roles, makeup, wigs, and other items to exaggerate gender as entertainment. Despite the recent legislative war on drag, it has a long history both within the United States and abroad.

The concept behind gender impersonation dates centuries – it was common for cisgender men to act as women in ancient Greece until Shakespeare’s time when women were prohibited from performing themselves. Similar performances spanned the globe, as exhibited by kabuki theater in ancient Japan. It wasn’t until the 19th century that drag was reintroduced in the United States through increasingly popular minstrel shows (a racist form of theater where white actors would impersonate Black Americans for entertainment). In these early days, both cisgender heterosexual men and closeted queer men took to the stage to mock Black women. Like minstrelsy itself, these impersonations were done in bad faith and used negative stereotypes to demean – which is vastly different from the lip-synching competitions put on national television today.

After the Civil War, minstrel shows began incorporating Black Americans into their shows, and by the early 1900s, female impersonation was influenced by French vaudeville shows that used a broader form of comedy compared to the narrow forms used in blackface minstrelsy. New roles were added and more female impersonators became popular for their work, leading performers like George W. Munroe to star on Broadway. As the art form drifted away from minstrelsy, it became more legitimized through vaudeville, burlesque, and traditional theatre. Around this time, ballroom culture was forming too – the other key component that gave birth to the modern drag scene.

Gay balls were special social events among queer individuals where they were encouraged to show off their costumes while partaking in gender impersonation accompanied by music – and were especially popular with the queer Black and Latine communities of Harlem, although they took place elsewhere in the country. The Masquerade and Civic Ball began in 1869 in Upper Manhattan, and exclusive balls occurred in queer Black communities in major cities. It’s theorized that these balls, and the queer culture that surrounded them, had the most impact on modern drag since it established houses, competition, and many of the performances utilized now. Ballroom and house culture still exists today – “Paris Is Burning” was produced in 1990 as an insight into the performers still competing despite social pressure.

Lastly, some historians point to the Western frontier as another influence on drag culture. Women were uncommon out west, so men were left to their own devices while pursuing work as cowboys, miners, loggers, and railroad workers – naturally forming intimate bonds that occasionally led to romance. Such environments prompted stag dances where men would dance with other men due to the lack of available women and prejudice. These dances were also common in the United States military – which is why drag shows weren’t obscene when they were sanctioned by the Army to entertain their World War II soldiers.

In the 1920s, America experienced the Pansy Craze – a decade and a half of increased queer visibility in the underground scenes of New York City, Chicago, Los Angeles, San Francisco, etc. These “pansy performers” were invited in cabarets and speakeasies popular with cisgender straight audiences that began to normalize crossdressing performances until the restrictions of the Hays Code in 1934 and police crackdowns on LGBTQIA+ individuals. These attacks would hold for decades, pushing queer performers back into the shadows.

Years later, queer folks were frustrated with how they were treated by the police, the government, and the general public. Queer respectability politics, or the idea that being a “good gay” will protect you from discrimination, divided the community as traditionalists argued that queer people should continue to pay dues to the mafia blackmailing them for protection against law enforcement. Gender-diverse individuals advocated for greater visibility that would lead to acceptance – and these politics may be why so many folks identified as drag performers and impersonators rather than transgender at the time. Until recently, it was significantly safer to identify as a cisgender person who impersonated the other gender than as an actual transgender person – which is why we associate figures like Marsha P. Johnson as transgender even though they identified as impersonators while alive. In this growing turmoil, transgender and gender-expressive individuals were targeted most frequently by police when gay bars were raided – including the night the Stonewall Riots began. In the greater queer liberation movement, drag performers and crossdressing were seen as a form of deviance and kink since it was so subversive to the cisgender heterosexual public – and one reason why kink has had a tied history to queer culture.

I’d like to note that the above is a short summary – as I mentioned previously, drag has a long history. Here are some resources for learning more:

Why do Drag Bans Matter?

Today, drag is popular among queer and straight audiences, and shows like “RuPaul’s Drag Race” further increase its visibility. It took a long time for us to get here – but that doesn’t mean it’s safe. Like near the end of the Pansy Craze, religious conservatives are attacking gender impersonation as morally wrong and another item that needs to be criminalized. These entities view drag as inherently sexual, arguing that children must be kept away from drag at all costs as a result. Drag bans range from banning drag story hours, where drag performers simply to young children in attire considered extremely conventional and appropriate for public audiences, to criminalizing drag shows altogether since minors may come into contact with performers – and using the same logic as “Don’t Say Gay/No Promo Homo” bills, be turned queer.

Not all drag performers are transgender – in fact, most of them are not. Yet we have a united history as marginalized communities and anti-drag laws can have profound effects on transgender rights. When these bills are written and passed into law, conservatives often argue they will have zero impact on transgender people trying to get through everyday life – but that’s not necessarily true. Most of the politicians who write these bills do not see a distinction between drag performers who dress up as another gender once a week and real-life transgender people who live and identify as their gender identity. To these officials and the organizations that help fund and write their bills, we are the same – transgender people are gender impersonators. Without us asking for clarification on these anti-drag laws, they are purposely written vaguely so they can be later used to criminalize transgender people for being ‘gender impersonators’ in public spaces – similar to how Jewish individuals and transgender people themselves were persecuted by Nazi Germany leading up to the Holocaust.

The good news is that federal courts overwhelmingly see drag as protected by the Constitution’s First Amendment. Every single person in the United States has the right to express themselves, even if others around them dislike it – the First Amendment only stops when that speech can be proven to incite harm onto others, and that’s usually a pretty high bar set by previous cases determined by the Supreme Court. 

In response, many anti-drag bills instead try to designate drag performances as adult-only events. These laws have two main impacts: firstly, they negatively harm pride festivals since most use drag performers as entertainment throughout their events – but pride festivals are almost always held outside due to their sheer size, and they’re almost always all-ages since anyone can be LGBTQIA+ and should have the right to meet other queer folks outside of reserved alcohol tents. Secondly, these types of bills can still harm transgender folks since if transgender people are designated as gender impersonators, we would not be legally allowed to present as transgender in public if minors are present – which is pretty much always, since “public” refers to city streets, businesses, libraries, community centers, gyms, restaurants, and any other setting outside the home. 

These laws have not been tested and rebuked as much compared to the first set that attempted to ban drag entirely – but there’s still hope and reason for the law to strike them down as unconstitutional. For performances and material to be censored due to being sexual, they must adhere to the Miller Test. The Supreme Court ruled in 1973 that for material to be considered obscene and liable to be censored, it must fit three criteria: 1. The average person, using contemporary community standards, must find it sexually explicit, 2. The work must be considered patently offensive, and 3. The work must lack any serious literary, artistic, political, or scientific value. The Miller test has been historically used to determine whether things like porn and erotica are allowed to be legally sold in the United States, but it can also extend to whether typical non-sexual drag performances are too ‘offensive’ for youth to potentially see.

Wondering about the current state of drag bans in the United States? The Movement Advancement Project maintains a national map based on legislation in effect – it does not include possible bills that circulate through state legislatures. At the time of this article’s publication, these states currently include: Montana, Texas, Arkansas, Florida, North Dakota, and Tennessee. Only North Dakota and Arkansas’s laws have not been blocked by federal courts.