Amidst a wave of anti-drag legislation and violence, drag performers and host venues across the country are moving to higher security or cancel performances altogether.

Last year, the LGBTQ community faced an onslaught of scrutiny and threats, from bills banning trans youth from participating in sports, to bans on gender-affirming care for trans youth. Towards the end of the year, another front for legislative and violent attacks emerged: drag shows. As drag reality competitions and drag brunches become increasingly popular, backlash in the form of armed protests and intimidation of drag performers has followed.

In November, an Oklahoma bakeshop had a molotov cocktail thrown through its window after hosting a drag show. Later that same month, a shooter entered a Colorado Springs drag show and opened fire, killing five people and injuring over 20 more. In December, far right groups such as the Patriot Front and Proud Boys showed up to a drag story hour in Columbus, Ohio, armed while others held up signs with slogans like “groomers not welcome” and “groomers are child abusers.” These are, unfortunately, not one offs. GLAAD reported that drag events faced 141 protests and serious threats in 2022.

Towards the end of 2022, lawmakers in six states proposed bills to ban drag in public or in the presence of minors. Amidst this wave of anti-drag legislation and violence, drag performers and host venues across the country are moving to higher security or cancel performances altogether. Despite this risk, drag performers are mobilizing to resist this most recent wave of discrimination and can count on the ACLU to support the fight against drag censorship. Here to talk with us about drag censorship and the tools to defend this expression are Peppermint, notable drag performer and ACLU’s Artist Ambassador for Transgender Justice, and Emerson Sykes, senior staff attorney at the ACLU’s Speech Privacy and Technology Project.

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KENDALL CIESEMIER

[00:00:01] From the ACLU, this is At Liberty. I’m Kendall Ciesemier, your host.

Last year, the LGBTQ community faced an onslaught of scrutiny and threats, from bills banning trans youth from participating in sports, to bans on gender-affirming care for trans youth. Towards the end of the year, another front for legislative and violent attacks emerged: drag shows. As drag reality competitions and drag brunches become increasingly popular, backlash in the form of armed protests and intimidation of drag performers has followed.

In November, an Oklahoma bakeshop had a molotov cocktail thrown through its window after hosting a drag show. Later that same month, a shooter entered a Colorado Springs drag show and opened fire, killing five people and injuring over 20 more. In December, far right groups such as the Patriot Front and Proud Boys showed up to a drag story hour in Columbus, Ohio, armed while others held up signs with slogans like “groomers not welcome” and “groomers are child abusers.” These are, unfortunately, not one offs. GLAAD reported that drag events faced 141 protests and serious threats in 2022.

[00:01:26] Towards the end of 2022, lawmakers in six states proposed bills to ban drag in public or in the presence of minors. Amidst this wave of anti-drag legislation and violence, drag performers and host venues across the country are moving to higher security or cancel performances altogether. Despite this risk, drag performers are mobilizing to resist this most recent wave of discrimination and can count on the ACLU to support the fight against drag censorship. Here to talk with us about drag censorship and the tools to defend this expression are Peppermint, notable drag performer and ACLU’s Artist Ambassador for Transgender Justice, and Emerson Sykes, senior staff attorney at the ACLU’s Speech Privacy and Technology Project. Peppermint, Emerson, welcome to At Liberty.

PEPPERMINT

[00:02:17] Hey, thanks for having us.

EMERSON SYKES

[00:02:18] Thanks Kendall. It’s nice to be back.

KENDALL

[00:02:20] So, Peppermint, I want to start with your story and background. Some listening may know you as our ACLU Ambassador for Transgender Justice, but that’s only one of the very many hats you’ve worn over the years as a Broadway lead, RuPaul’s Drag Race contestant, and more. You’ve said you knew from a very young age who you were. But I’m wondering if you would share with us a little bit more about your journey, particularly with drag. How has drag played a role in identity-shaping and formation for you? What did that look like when you started and what does that look like now?

PEPPERMINT

[00:02:58] Well, I think it’s important to say, first, that when I started doing drag, it was several years ago, well before this decade. And so a lot of the things that we associate with drag, drag brunches, drag shows, and some of the things that are pertinent to this conversation did not exist. Culturally, it wasn’t as accessible to everyone as it is today. So when I started doing drag, it felt very underground. It felt very much like a rebellious sort of thing. I mean, I guess my first time really doing drag was as a child dressing up in my mom’s clothing. I think lots of kids, you know, get into their parents’ clothing and try it on. And, you know, that’s like the free make-believe toy chest, right. But my first time really doing drag was at a school, sort of, drag competition, I guess you could call it. It was a thing where everyone would cross-dress and, you know, it had nothing to do with sexuality. These were high school students, the football players, the cheerleaders, and everyone would dress up at homecoming time and whoever looked the best won.

KENDALL

[00:04:11] Did you win?

PEPPERMINT

[00:04:13] I won. Of course I did, darling. I think something awakened in me and I was hooked. All of a sudden, everyone was like, that’s the one. And it was because of, obviously, not only how I was dressing, but also how I was acting and how I connected with it myself. I felt free. I felt really, in an odd way, sort of protected with this clothing that felt like armor suddenly. Enough to strut my stuff and-and sort of be my swishy self that was not feeling protected when I would still be that same swishy self not in drag. And so, that’s what it provided for me, was that sense of freedom. And a license to, you know, perform my version of femininity and have it be, you know, accepted by many, many people and-and praised and celebrated. And that’s something that carried through the years, when I started doing drag as a-as a job and then obviously now as a career. You know, the celebration aspect of it, it remains.

KENDALL

[00:05:26] You know, you said that we’ve seen this notable backlash. It doesn’t seem entirely dissimilar from the backlash that other social movements see when they have a rise of visibility or success. What do you think is really happening here? What is it?

PEPPERMINT

[00:05:45] I’ll tell you, it’s very important to say that, you know, obviously I’m recognizing the attack on drag as an issue. Drag in general, drag shows, drag performers, and the notion of drag entertainers being able to read to children and youth and connect with folks in public. And it’s obviously taken a dangerous turn or it’s been dangerous and it’s even becoming more dangerous. The attacks on drag. I’m shocked and-but not surprised and hurt by it, obviously. But, you know, I do believe that this is a bit of a red herring and a scapegoat, I don’t think-I think what they’re saying when they’re saying groomers, they’re not saying actual groomers. They’re-they’re using that as sort of a catch all for anything LGBT. They are, you know, where’s the proof or any evidence that drag entertainers are out there grooming and abusing youth? It’s not there. If they were so set on stopping the abuse and the danger of children, they would- they would really be talking about gun violence. And let’s talk about the Catholic Church.

KENDALL

[00:07:02] They ought to be interrogating other systems.

PEPPERMINT

[00:07:05] I believe it’s a red herring. And I certainly think that this is almost-drag is to gender and sexuality, conversations on gender and sexuality, and sex, and trans issues as woke, the word “woke” in their definition is to race relations. It is sort of a catch all that allows them to attack a word or a notion or an idea, drag, when really what they’re talking about is transgender folks. Trans issues, trans rights, you know, anything having to do with gender and sexuality that they’re trying to dismantle that- dismantle any of the progress that we’ve had on that, and turn us into the boogeyman.

KENDALL

[00:07:45] It’s-it’s that they are upset with the progressive movement towards, you know, a genderless society or an anti-patriarchal society or an anti-racist society. Emerson, you work on these issues very specifically, censorship of one subject matter is-is pretty linked to censorship of all subject matter. How do you connect what Peppermint is talking about to the stuff that we’ve been seeing across the country and school districts and the efforts to promote censorship in education?

EMERSON

[00:08:23] Thanks, Kendall, and thanks Peppermint. I do think, you know, context is very important and these are linked as a part of a broader cultural, political, social dialog that’s going on in this country. And as we see with all movements, with great progress comes a backlash. And I think we’ve seen in our lifetimes. And I think, you know, while there are still huge challenges, right, there’s still violence in the streets against trans people, against LGBTQ people. I’m not trying to paint too rosy a picture, but I think we can agree that there’s been massive progress. And what we see is the backlash in the same way that in-the in the aftermath of the national reckoning around race and the summer of 2020, we then saw these quote unquote anti-CRT pieces of legislation. We at the ACLU have been involved in challenging a number of them. We’ve successfully blocked the Stop W.O.K.E. Act, for now, in Florida. But now we’re looking at all of these related issues of book bans which heavily target LGBTQ and race-related books, that those can be in schools, as can be in public libraries. We’ve seen curricular bans. So this is bans on what you can teach in the classrooms. We’ve seen even bans on what you can teach in college classrooms. That was the basis of our challenge to the Stop W.O.K.E. Act. We’ve also seen, you know, these related infringements on teachers being able to have pride flags and being able to show allyship. And then also, of course, we’ve seen this whole other sort of strand of anti-trans legislation that-that targets health care, the use of bathrooms, participation in sports. So there’s a huge, you know, conglomeration of issues that are deeply linked. It’s trying to criminalize. It’s trying to censor, trying to remove LGBTQ people from public space. And so our job as litigators is to figure out what, if any, of these we can knock out in the courts using the flawed tool that we have, which is the Constitution.

KENDALL

[00:10:23] Emerson, I’d like to dig in a little bit to what we are seeing on the ground. As I mentioned in the introduction, in the last few months of 2022, Arizona, Idaho, Michigan, Montana, Tennessee and Texas proposed to ban or limit drag performances in various ways. Could you break down some of these bills for us? What-what are you seeing?

EMERSON

[00:10:48] Sure. I’ll start with Texas. I think it’s one of the ones that sticks out. Interestingly, it has been called a ban, but it’s not a ban. It’s not quite a ban. What it says is, that any establishment that features performers that are essentially wearing clothes that do not align with their gender identity, presumably assigned at birth, it doesn’t say assigned at birth. But it basically says if you feature performers who are cross-dressing, you must register as a sexually oriented business, which leaves you subject to a whole set of regulations that regulate sort of, you know, to be very explicit. Venues, bookstores, that kind of thing, where, you know, the First Amendment and courts have said that while we do value free expression, there are certain types of speech that have very little value according to the courts. This is what we call obscenity, right? This is speech that is appealing to the prurient interest, but importantly, without any sort of artistic value, right. And so we are very careful about what kinds of art gets recognized, right. And so I think what we’re seeing now is an attempt to put with this Texas law. It’s still a bill. If this thing passes, I’m not making any promises, but I think there will be a very strong lawsuit challenging it. But what this law has said is any time that you include cross-dressing in any way, shape or form, you have inherently done something that appears just to the prurient interest and is obscene, which is absurd. Right? We think about, like, Shakespeare, any sort of. What does it mean to cross-dress anyway in 2022? Like, is a woman wearing pants cross-dressing? Like, it doesn’t really make sense. So again, what’s behind it is what’s really important. We know what they’re trying to get at, what they’re trying to do. But part of what we can do is point out that one, your intent is-is unconstitutional, you’re not allowed to have a, you know, a sensorial intent in this way. But also that this law that you’ve written is going to have unintended consequences beyond even your illegitimate intentions.

KENDALL

[00:13:03] I want to follow up on-on this Texas bill in particular. You know, I think that it’s part of the larger movement that you mentioned, Peppermint, to try and sexualize LGBTQ expression. And I think there’s a real danger in that. And I think it’s really dangerous that this Texas bill wants to essentially put these kind of performances on the same plane as being sexually explicit or sexually oriented. Peppermint, what is at stake when we use that kind of language? How does this feed into the broader narrative that you mentioned at the beginning about calling drag performers groomers or LGBTQ people and groomers at large?

PEPPERMINT

[00:13:40] I do think that we-we do have a visceral reaction when we hear words that are associated with groomers like pedophile and child abuser and things like that, rightfully so. Our antenna go up and we’re suddenly on a sort of defense mode and we’re we want to stop that from happening again, rightfully so. I think the powers that be are using that instinct that we have in that reaction that we have to effectively shut down the conversations and literally the shows of queer folks, LGBTQ folks, drag entertainers and the like, just by labeling us with that sort of, for lack of a better word, scarlet letter, if you will.

KENDALL

[00:14:23] You know, I think it’s really important to be clear that it’s not just trying to prevent people from attending a performance or engaging in drag. It’s also about trying to incite violence. And-and I think that that’s like a real thing that we’re-we’re witnessing. I wanted to ask you, from your personal perspective, as you know, a drag performer as being very, very popular in the community, famous, if you will. What has it been like to the community to see this incitement of violence and to see this real reaction coming from these, quote unquote, protesters that are now taking it a step further?

PEPPERMINT

[00:15:06] I have talked to some folks who have been attacked and shut down, and this has been going back years, not even necessarily with this new sort of wave of discrimination that’s happening. But I have seen picketers outside of drag shows and things like that, which is obviously starting to happen and increasing. And the girls that I’ve talked to, the drag entertainers that I’ve talked to have, you know, obviously they’re upset by this and they’re hurt by this because they know that this is not their intention. And I think when people are mislabeled or are having their intentions questioned, then it is-can be upsetting, obviously, to people. Clearly, these drag entertainers don’t think that they’re in any sort of actual violation of anything because they’re not doing any of these things. So I think there’s also a sense that this is ridiculous. But the other thing that’s really interesting is there’s many more drag entertainers that I know today that are more politically active. And I don’t just mean on social media- actually running for city council and more and being very politically active in that way. And so these days, drag entertainers are becoming politically active and-and not necessarily shying away from the fact that they do drag and also are connecting that to whatever it is that they’re doing during the day, running for office in-in drag, like in their commercial or whatever. Of course, I don’t live in Texas. I don’t live in a lot of these places where these laws are being introduced. But we are seeing protests and picketers showing up even in New York City.

KENDALL

[00:16:43] Yes. I want to bring in Emerson again here, because, you know, I think that there is this line to be towed when we talk about free speech and protest. Free speech and protests can become violence. And then it’s, you know, tipping over the edge. We work, you work on this issue across the board, right. And we’ve seen this in other protest movements where things can become violent or can incite violence. This is a really tricky needle to thread between allowing for protest and free speech on certain side of an issue and also protecting against censorship on another side of the issue or protecting against violence. How do you think about this work from a censorship perspective and-and can censorship ever not lead to violence? Like, how does this all culminate in interplay with one another? And how do you think about pulling some of those things apart?

EMERSON

[00:17:45] It is tricky. I think when we start talking about protests and counter-protests and then you mentioned a few times a particularly tricky word around incitement. And this is something I’ve litigated, I’ve written about. For example, incitement doctrine is traced back to an ACLU case called Brandenburg v. Ohio. This was a case about a KKK member’s violent rhetoric and the horribly racist video that he produced by-with a handful of friends on a farm in the middle of the woods. And what the Supreme Court said was, what he has said is abhorrent but nobody was directly threatened, there was no proximate violence, and in order to hold one person responsible based on their speech for somebody else’s violent or unlawful actions, you have to insist on a very tight linkage between the speech and the unlawful activity, because we don’t want to hold folks responsible for the unlawful activities of others. No more should the BLM protesters all be painted with the brush of somebody who threw a molotov cocktail or all drag performers should be condemned for what one person may have done in a worst case scenario. It just doesn’t mean that everybody else who is doing drugs should then be prohibited from performing because, you know, it could potentially lead to X, Y, or Z. So what Brandenburg gave us was a three part test. It said, if you’re going to hold somebody responsible for incitement, their speech has to be directed at creating the unlawful activity. It has to be objectively likely to prompt the unlawful activity and it has to be imminent, right. So there has to be a tightness in terms of time. And we insist on a tight test. And let me tell you, we litigated this exact principle on behalf of DeRay McKesson in front of the Supreme Court because a police officer tried to hold him vicariously liable for the actions of an unnamed, unspecified protester who threw an unspecified object and hit an unidentified police officer. And they tried to pin it on DeRay McKesson, basically saying that he more or less incited the violence by bringing folks into the street out in front of a police station, right. So when we, when-when I hear the word incitement, that’s why the hair on my neck stands up, partly because we-we come at this doctrine from a KKK, ACLU case. That gets at all the things, but also how we use this doctrine to defend folks like DeRay McKesson, to defend folks like Peppermint, or others who are trying to be held, you know, or painted with a broad brush. I’m not drawing a false equivalency, right. Like, I’m not saying that these folks are the same as the KKK, but what I am saying is that when we start trying to think about what kinds of speech we’re gonna to allow and what kinds of speech we’re gonna to disallow, we have to be very careful before we prohibit that speech. We’ve gotta insist on some narrow confines for government power to restrict expression, and that is whether we like the government or we don’t like the government, we’re going to have to make them abide by the same lines. So that’s sort of my overall approach. But I think the other thing that comes up for me here, and what we heard from Peppermint is that drag is a form of freedom, it’s a form of entertainment, it’s a form of expression, and it can be a form of protest. And so, we think a lot about how expression can be a form of protest and how expression can cause a backlash in and of itself. But there’s also a special kind of protest, and I think both drag and some of the race-related work that I do also comes with this is where people’s very existence is protest, right? And so what we’re seeing is not just targeting certain particular kinds of activities or certain egregious examples, but really trying to criminalize trans existence in public specifically. And so it’s where-it’s where we-we get from expression as protest to very existence as protest or I think we really see why it’s so important that we constrain the government’s ability to regulate what types of ideas and what types of expression are lawful.

KENDALL

[00:22:11] Do we have any sense of how the courts view the connection between drag performance and expression more explicitly? That would even be considered a form of expression, because I know expression is like a very broad term, legally, and often isn’t as kind of held up as a value as like speech more explicitly.

EMERSON

[00:22:35] There is some case law on this, not a ton of case law on this. There may be more soon. I think a lot of courts have found that these types of efforts are extremely vague and overbroad, and they fail on those accounts because attempts to legislate in this area often lead people to ban, as I was talking about earlier, things that they never even meant to, ban far beyond any legitimate bounds of regulation. So we do have a handful of, you know, pretty good cases that talk about how some of these types of restrictions can go overboard. And you’re right that courts are encouraged to interpret the words “artistic expression” quite broadly. And I think when we’re talking about whatever someone might be wearing, if they’re singing, if they’re dancing, if they’re performing, it’s very hard to argue that it’s lacking any artistic value, whatever someone might be predisposed to think about drag, arguing that it is by definition devoid of artistic value, I think would be a stretch, though I wouldn’t put it past some judges. So that will be really what, what will be before the courts in some cases is what, how vague is the particular language? And in some cases, it might be how protected is the actual speech that was happening?

KENDALL

[00:23:52] Thank you for that. I think that’s really helpful. Just from like a legal perspective on how we’re thinking about these issues and how we’re thinking about defending against some of these, these efforts to ban drag. Peppermint, you know, I think one of the things I’m struck by is your sense of resiliency, just this, like, core belief that we’ve been here before and we will fight back, as you know, we always have. That-while this recent wave is troubling and has led to violence and has been really difficult, it’s not new. What about LGBTQ history has led you to have that value and exhibit that in our interview in conversation today?

PEPPERMINT

[00:24:39] Well, you know, personally, it’s been my experiences. The fact that I’m the age that I am, remembering that when it comes specifically to drag, you know, there wasn’t a drag TV show. I was fired for doing what my bosses would probably consider in their limited view for doing drag. When I was going to work at a bank, I wasn’t in drag. You know, I was wearing long hair and it was the beginnings of my journey down the trans road. But it was a form of expression. I was wearing long hair and painted nails and different things like that to a bank, which is obviously a very sort of conservative environment, in the nineties. And, you know, there were no protections. It was illegal for them to fire me for having long red hair. And guess what? I still wore the hair. And so, you know, it’s not, I don’t, I don’t think personally that if these laws passed in every state, I don’t think it would stop me. Of course, it would probably give me pause and I would, you know, think a little more slyly, I would probably sneak through a certain door instead of parading in the front. But it certainly wouldn’t stop, you know, any drag shows from existing and things like that. You don’t have to look very much further than things like Stonewall or the Black Cat Tavern. And, you know, of course, our history becomes a little more blurry when we talk about these events because we didn’t have the same type of documentation and way to record them that we do today. But nevertheless, you know, our community and when I say our community, as intersectional as it is for me, our community of queer people, of Black queer people, of women, of-of everyone, obviously of trans folks, is strong. And we-living-growing up in a country-we’re living in a world where you’re-you’re not protected necessarily by the law and the government in terms of your identity and where it is okay to attack us based on these things. Even if we lose all the progress, then we’ll just do what we did to get us where we are today. So we’re going to end up right back here. It’s obviously cyclical, but I don’t think that these things are going to pass or go through. We’re not, I don’t, I don’t think we’re in that type of danger in terms of, you know, having everything completely stripped away, although it does feel like it. I do like to believe the other thing that gives me hope in this is that there’s people that are calling themselves LGBT allies more than ever before. And-and so that means there’s more support than we had in the last generation. And so that also gives me some hope and more resolve in my resilience.

KENDALL

[00:27:46] My final question is, you know, we have a lot of listeners who are big fans of drag, part of the LGBTQ community themselves, allies of the LGBT community, people who just believe that this is unjust and, and want to be a part of the effort to fight back. What are ways that people listening can support the drag community and fight back against some of the recent events that have popped up across the country?

PEPPERMINT

[00:28:22] You know, safely attend drag shows and drag performances and, you know, support the individual drag entertainers, tip them, you know, give them money because this is their job. This is what they’re doing for their job. And if going to a drag show means the Proud Boys are going to show up with guns and weapons, then that makes drag a very dangerous job. And these entertainers are risking their lives to entertain you. And so, you know, let’s show some appreciation in that regard. And, you know, I don’t know what folks can do to be an ally, to drag, cause, drag, I guess that can be an identity. But, you know, I, I want people to really show up for Black trans women the way that they’re showing up for a damn drag show. Let’s line up and, you know, protect those people. Let’s-let’s make sure that, you know, when you let us speak really lovingly about trans individuals and queer folks at your next family or company event, you know, let’s do that to sort of move the needle. Because again, what they’re really doing is when they’re attacking drag shows and they’re saying, we don’t like drag does that. They’re talking about lesbian, gay, bisexual and transgender and queer people. That’s the code that they’re trying to send. And so those are really the groups that we need to be focusing on. And if you’re focusing on the LGBTQ community and the rights that we are either fighting for or trying to keep or protect or get, then you are protecting drag shows and drag entertainers.

EMERSON

[00:30:06] I hesitate to go after you, Peppermint, but just to add one more thing as a parent, and because sort of, you know, protecting the kids is such a theme throughout all of this, these issues that we’ve been talking about, I think one more thing that parents can do is, you know, as we see efforts to try to invisiblize LGBTQ people and sort of wipe their narratives from future generations, we as parents can insist on inclusive education being a priority for our children and supporting LGBTQ and LGBTQ ally teachers in schools. I mean, it may seem hard even at your local state legislature, to get involved, but of course there are ways to do so. Your local ACLU affiliate would be happy to get you involved. But even on a more local level in your individual school district and in your individual school community, these issues are undoubtedly coming up. And the ways that we can show solidarity and support for giving an honest and inclusive accounting of who we are as a people and the kinds of voices that we want our children to hear and learn from and learn about is a big piece that we can add as parents.

KENDALL

[00:31:17] Thank you for that. Emerson I always say that, you know, we can actually not just be on the defensive, we can actually be on the offensive here and we can actually show up in the same way that other parents are showing up to fight against, you know, things like CRT or drag shows. We can actually fight for them. Thank you both so much for joining us. Really, really appreciate your time and all the work that you are doing for all of us.

EMERSON

[00:31:43] Thanks, Kendall. See you around.

KENDALL

[00:31:45] See you around.

PEPPERMINT

[00:31:46] Thanks, Emerson.

KENDALL

[00:31:50] Thanks so much for listening. If you enjoyed this conversation, please subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. Until next week, stay kind.