The 9th Circuit Court of Appeals last week upheld provisions blocking Montana from enforcing a ban on drag story hours and performances in public schools and libraries.

The ruling is the latest in an ongoing lawsuit brought by several nonprofits and businesses against the state in July 2023, just a few months after Gov. Greg Gianforte signed the ban into law. Plaintiffs argue that the law infringes on First Amendment free speech rights, while proponents of the ban say drag story hours and performances negatively affect children.  

A federal judge in Butte issued a preliminary injunction in October 2023, preventing the state from enforcing the ban until the case is settled. A three-judge panel unanimously upheld the preliminary injunction March 13 after the state appealed the original decision.  

In a 97-page opinion in the case, Judge Jennifer Sung wrote that the state failed to provide evidence that drag story hours harm children, instead relying on anecdotal testimony and personal opinions offered by proponents during legislative hearings on the law.  

She also found the statute relied on vague, overly broad definitions. Drag, for example, is defined as a “flamboyant or parodic” performance of a male or female persona that uses “glamorous or exaggerated costumes and makeup.” 

“Cinderella, Elsa from ‘Frozen’ and many other Disney princesses could be described as adopting flamboyant feminine personas when they dress up in glamorous ballgowns and bejeweled tiaras,” wrote Sung. 

She argued that the statute would also apply to figures like Dolly Parton, with her “famously flamboyant feminine persona.” 

Provisions in the law that restrict “sexually orientated performances” in businesses that receive any form of state funding met similar challenges. As defined in the statute, a performance is “sexually orientated” when it is intended to appeal to prurient interests. The law does not guide who determines the intent of a performance or how performances with mixed intentions should be addressed. 

Plaintiffs argued that the vague definition of a “sexually orientated performance” could apply to PG-13 movies like “Asteroid City,” in which a single scene briefly depicts an actress undressing to get into the bathtub. While the film is exempt from the law, a theatrical reproduction using the same script would be subject to the ban.  

Sung wrote that the discrepancy proved the state’s definition of a “sexually orientated performance” was both over- and under-inclusive. 

“In sum, even assuming that the state has a legitimate interest in shielding children from sexually explicit speech that is indecent but not obscene, and that all ‘sexually oriented performances’ are sexually explicit, ‘indecent’ speech, [the] sexually-oriented-performance restrictions are not narrowly tailored to the asserted state interest and therefore fail strict scrutiny,” reads the opinion.  

The injunction will remain in place as the lawsuit moves through federal court in Butte. Judge Brian Morris is currently presiding over the case.