Introduction
When this Note speaks of drag, it will speak of joy. It will speak of brunch servers,1 preschool teachers,2 construction workers,3 opera singers,4 academics, and lawyers (yes, lawyers5) transforming from Clark Kent into Beyoncé.6 It will speak of children who have been scolded and bullied for their differences being celebrated for the very qualities that made them stand out.7 It will speak of the friends of this Note’s author — their humor, their talent, and their generosity.
The joy of drag is, unsurprisingly, under attack. A flurry of states, counties, and cities have passed laws seeking to stop the spread of these glamorous, liberating, and persuasive performances. These attacks have been couched in homophobic language that portrays drag performers as sexual deviants — or, worse, “groomers.” In just a short span of time, anti-drag regulations have generated legal, emotional, physical, and economic harms to drag performers and the LGBTQ+ community.
Luckily, a constitutional amendment ratified by men in makeup8 wearing wigs9 prevents the passage of laws that aim to suppress drag performances.10 Some academics, such as Professor Catharine MacKinnon, have decried the First Amendment as having “morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.”11 However, in its protection of drag performers, the First Amendment demonstrates that its most valiant doctrinal aims still persist — but its practical impact might be lacking. Even after anti-drag regulation is declared unconstitutional, its primary harms persevere: speech remains chilled, social norms remain altered, and drag remains unduly politicized. And bullish legislators have accomplished this feat with the passage of bills that “most legal commentators, and really anybody with even a passing understanding of how the First Amendment works,” would have deemed unconstitutional.12
This Note proceeds as follows. Part I describes the history of drag, highlighting the centuries-long trajectory of the art form in order to elucidate its expressive and political nature. Part II describes recent attempts to restrict drag performances and situates them within a history of anti-cross-dressing laws and anti-LGBTQ+ rhetoric. Part III surveys the protections afforded by the First Amendment to drag performers, arguing that the vast majority of anti-drag laws are unconstitutional. Part IV utilizes an expressive law framework to unpack distinct harms generated by anti-drag legislation and argues that these harms are not adequately remedied by judicial decisions overturning statutes. While anti-LGBTQ+ sentiment will not be eradicated by the elimination of anti-drag laws, attacking these regulations protects the emotional and financial interests of some of society’s most marginalized members.
I. The History of Drag: From Center Stage, To the Shadows, And Back Again
Before William Dorsey Swann was (perhaps) the world’s first drag queen — he was enslaved.13 A newly emancipated Swann threw lavish dance parties in Washington, D.C., where he and his closest friends would don women’s dresses, corsets, bustles, long hose, and slippers — as the Washington Critic put it, “everything that goes to make a female’s dress complete.”14 In 1896, Swann’s fêtes suffered a brief intermission when he was convicted for “keeping a disorderly house” (in less genteel terms, running a brothel).15 Undeterred, Swann continued throwing parties for “his secretive all-male family” despite multiple run-ins with the D.C. police.16 Against a backdrop of rigid nineteenth-century attitudes toward gender, “Swann and his house of butlers, coachmen, and cooks — the first Americans to regularly hold cross-dressing balls and the first to fight for the right to do so — arguably laid the foundations of contemporary queer celebration and protest.”17 Not only a queen of drag, Swann was a queen of liberation, joy, and compassion.
Swann exists in a long line of artists who have used drag to challenge social mores, free themselves from rigid expectations of gender, and build community among fellow queer and transgender individuals. This Part examines this history of drag and describes its role in modern society.
A. Drag’s Beginnings
Long before the first drag queen came the first drag performances. Typically, a drag performance is defined as one in which “the intent is an undoing of gender norms through doing (or dressing) the part of the opposite sex.”18 However, modern drag performers often enhance characteristics of their own gender to convey similar messages.19 The practice of drag is both storied and universal: cultures across the globe have applauded the performances of cross-dressing men.20 In Elizabethan theatre, the term “to boy” meant “to play a female role on the stage irrespective of the actor’s real age.”21 And in Japan, the onnagata perfected the art of female impersonation — famed performer Yoshizawa Ayame wrote to aspiring boys: “You cannot be a good onnagata unless you are like a woman in daily life.”22 These earliest drag performances were largely driven by prohibitions against women performing in public.23
However, some historians argue that the literal roots of modern drag are more recent than the ancient stage.24 The first known usage of the term “drag” was in 1860s Victorian England, where Ernest Boulton described his cross-dressing act as “drag.”25 And during the same period in the United States, drag performers “starred in racist minstrel shows, during which mostly white actors wore blackface to portray racial stereotypes of African Americans.”26 The racist caricatures soon gave way to portrayals of “glamorous white women with thin waists and elegant makeup.”27 Julian Eltinge, one of these performers known for his ladylike appearance, “launched the Eltinge Magazine, dispensing beauty and fashion tips to