Montana’s ban shares a key feature with many of the other states’ bans targeting drag: It is written in broad, vague language seemingly designed to produce a chilling effect, encouraging people to enforce the law based not on its contents but in fear of how it might be used against them. It’s working. Following the ban’s passage, a public library in Butte used the law to justify prohibiting a trans woman from presenting a public talk on the history of trans and Indigenous people. County Attorney Eileen Joyce, the top local prosecutor, advised the library to cancel the event after receiving a transphobic message on social media (which called the presenter “it” and pleaded, “Will the local police be allowing this to happen?”). The prosecutor acknowledged, as the Montana Free Press reported, “that the county’s actions could be seen as discriminatory toward transgender people and possibly even grounds for a lawsuit.” Sure enough, the woman whose talk at the library was canceled was among the group of plaintiffs who filed a challenge to the law in federal court in Butte in July.
It’s clear that these bills are shabby pieces of legislation that should not hold up under the barest judicial scrutiny. But they were not designed to be workable laws. Rather, the bans have proven most successful so far in creating chaos, both for those potentially penalized for violating them and for those charged with defending the bans. This is by design. While Republican state lawmakers make blatant attempts to define drag as somehow outside protected First Amendment speech, their lawyers have been left arguing in court that the bans aren’t what they are: an attempt to target a specific group for a particular kind of expression.
As these constitutional challenges to the bans proceed, they may well continue to underwhelm yet more members of the judiciary. On that level, they look like they are losing: Tennessee’s was struck down as unconstitutional, and Florida’s is temporarily blocked from being enforced, as is Montana’s. In Tennessee, however, as reporting late Tuesday from legal journalist Chris Geidner revealed, one district attorney claims he has the power to prosecute any violations of the struck-down ban should they occur at Blount County Pride on Saturday, despite a federal judge striking down that ban in June as “an unconstitutional restriction on speech.” Blount County District Attorney Ryan Desmond also admitted he tried but failed to find a legal way to block the Pride event before it occurs. “In other words, Desmond and his staff looked high and low for a way to violate the Constitution, but they came up empty-handed,” Geidner wrote. They are apparently not going to let that stop them.