Bill defining 'adult-oriented performance' passes House committee

Definition added after reworking

Rep. Ashley Hudson, D-Little Rock, raises a question about the effect the measure would have on performers’ First Amendment rights. “Why isn’t the solution to simply not take your kids if you’re worried about exposing them to these types of performances?” Hudson added.
(Arkansas Democrat-Gazette/Staci Vandagriff)
Rep. Ashley Hudson, D-Little Rock, raises a question about the effect the measure would have on performers’ First Amendment rights. “Why isn’t the solution to simply not take your kids if you’re worried about exposing them to these types of performances?” Hudson added. (Arkansas Democrat-Gazette/Staci Vandagriff)

A bill previously aimed at regulating "drag performances" was overhauled during a House panel Wednesday and approved in a voice vote with audible dissent from Democratic lawmakers.

The House Committee on City, County, and Local Affairs approved an amended version of Senate Bill 43, which was originally filed by Sen. Gary Stubblefield, R-Branch, to classify a "drag performance" as an adult-oriented business.

The amended bill defines an "adult-oriented performance" and places restrictions on these shows.

Rep. Mary Bentley, R-Perryville, who presented the bill to the committee, said the amendment would keep the legislation from affecting plays and lip-syncing performances.

Under the approved amendment, the bill defines an "adult-oriented performance" as a performance that is "intended to appeal to the prurient interest and that features: A person who appears in a state of nudity or is seminude; the purposeful exposure, whether complete or partial, of: a specific anatomical area; or prosthetic genitalia or breasts; or a specific sexual activity."

The legislation would bar an "adult-oriented performance" from taking place on public property, admitting any minors or being "funded in whole or in part with public funds."

Opponents raised concerns that the language of the amended bill was unclear and could limit freedom of expression for artists and infringe on the rights of gay and transgender people. Democratic lawmakers noted state law currently includes statutes regulating displays of sexually explicit material.

The intent of the bill, Bentley said, is not to target transgender people or theatrical performances but to protect children from sexually explicit shows.

[DOCUMENT: Read Senate Bill 43 » arkansasonline.com/202bill43/]

In its original form, the bill defined a "drag performance" as requiring at least one performer to exhibit a "gender identity that is different from the performer's gender assigned at birth," must be held before an audience of at least two people for entertainment and must appeal to "the prurient interest."

Before the amendment passed, Bentley said she and other lawmakers had received emails from schools concerned about how the bill could affect fundraising performances. The amendment would allow high schools to put on shows including "male beauty pageants," she said.

"We're trying to stop explicit material from our children," she said. "This bill does not stop lip syncing or someone that's dressed up in the opposite sex."

The amendment came from the office of Attorney General Tim Griffin and received the support of the office of Gov. Sarah Huckabee Sanders, said Bentley.

"The amendment to SB 43 is necessary to align the bill with First Amendment case law and is an improvement because it targets all sexual shows performed before minors," Griffin said in an emailed statement. "Rep. Bentley and Sen. Stubblefield have been strong, conservative allies, and we are grateful for their leadership in the fight to protect our children."

Were the bill to pass, Bentley said, parents would not be permitted to bring their children to "drag performances" that fall under the definition of an "adult-oriented performance" in the legislation. The bill would prevent minors from attending private performances including those held in homes, according to Bentley.

When asked how the bill would be enforced, Bentley said it would be enforced "like we enforce every other law" that restricts access to adult-oriented businesses.

Rep. Andrew Collins, D-Little Rock, questioned how the definition of "seminude" and an "adult-oriented performance" would function.

[DOCUMENT: Read Senate Bill 43 amendment » arkansasonline.com/202amendment/]

Bentley said judges would largely be responsible for determining how the bill was interpreted and applied.

"Well, I do think that the words in our bills are what we determine," Collins said.

Bentley said she had heard from constituents who were concerned about the innocence of their children being violated by performances.

When asked about specific instances, Bentley pointed to a case where she said children were handed emergency contraceptives during a parade in Little Rock. She also pointed to instances in Texas where she said children were exposed to explicit material.

Bentley said she was unaware of specific instances of children being exposed to an "adult-oriented performance" in Arkansas as defined under the bill but said "that doesn't mean it hasn't happened."

Rep. Tippi McCullough, D-Little Rock, said she had not heard from any constituents who were concerned about the influence of drag performances on children.

"I've heard nothing about any of this. I've seen none of this happening across the state," McCullough said.

Bentley noted she and McCullough represented different parts of the state.

Given apparent differences in values across Arkansas, Collins asked if the regulation of adult-oriented performances could be addressed on the local level.

"I think we need to expand state policy, and that's why I'm here today," Bentley said.

When asked why the bill was necessary given that laws already exist restricting access to sexually explicit material, Bentley said that "we've have not drawn the line enough. I think we've seen this being pushed a little out front and open."

Rep. Ashley Hudson, D-Little Rock, said she was concerned about how the bill might impact the First Amendment rights of performers.

"Why isn't the solution to simply not take your kids if you're worried about exposing them to these types of performances?" Hudson said.

Bentley said the legislation was needed because "adult-oriented performances" as defined by the amended bill were happening in public where parents may not be able to shield their children.

The committee approved a motion, with audible dissent, to limit public testimony to a total of 15 minutes for each side for and against the bill.

Sarah Everett, policy director of the American Civil Liberties Union of Arkansas, said that if enacted the bill might require businesses that host "adult-oriented" drag performances to relocate. She noted that an "adult-oriented business" could not be located within 1,000 feet of certain spaces including public parks, churches or playgrounds.

Everett also said the unclear language of the bill made it unconstitutional.

"A law violates the Constitution when an average citizen cannot determine who's regulated or what conduct is prohibited," she said. "It's not enough to say it's not the purpose of the bill or that the courts will sort it out."

The ultimate goal of the legislation, Everett said, was to "curb the free speech and expression of the LGBTQ community and their allies."

Athena Sinclair, a self-identified drag queen, said the bill and its sponsors failed to grasp the purpose of drag.

"What we do is not sexual. When I dress up in drag, I'm doing it because it is simply art," Sinclair said.

Judson Scanlon, a transgender person who spoke against the legislation, worried the bill would restrict the rights of transgender people who may alter their appearance in public. Scanlon raised concerns that the language of the bill left it open to various interpretations.

"This bill chooses to go to arbitrary as opposed to defined, and we have fought that for years in the gay and lesbian community," Scanlon said.

Gary Sullivan, legal director of the Arkansas ACLU, said under the provisions of the bill, children would be barred from attending performances akin to those once held by Elvis Presley.

Jennifer Lancaster, who represented herself, spoke in support of the legislation, saying the bill was not a ban on "drag shows, gender neutrality, self-expression, creativity or any other freedoms that make Arkansas great" but rather the "regulation of adult content."

Last week, Senate Bill 43 passed in a vote along party lines in the Senate. The committee vote sends the bill to the full body of the House for consideration.


  photo  Rep. Mary Bentley presents the amended “drag performance” bill to the House Committee on City, County and Local Affairs on Wednesday. (Arkansas Democrat-Gazette/Staci Vandagriff)
 
 


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