House panel advances one bill limiting “kid friendly” drag shows, tables another

PIERRE, S.D. - South Dakota House lawmakers want to crack down on “kid friendly drag shows” on the campuses of public institutions.

That was according to a party lines vote in the House State Affairs committee Monday morning, where members voted 11-1 to advance Rep. Chris Karr’s (R-Sioux Falls) bill. It would limit “lewd and lascivious content” on public campuses, and prohibit the use of state resources for putting those events on.

The bill comes in response to a drag show hosted on South Dakota State University’s campus last year. That event was advertised as “kid friendly,” and encouraged those attending to “show your support for the drag queens by bringing $1 or $5 bills to tip if you choose!”

Rep. Erin Healy (D-Sioux Falls) was the only opposing vote to Karr’s bill.

“Should taxpayers be expected to provide resources to host any event students want on campus?” Karr asked the committee. “That is why I took this bill further, it isn’t just about SDSU, we are talking about taxpayer resources.”

Student activists and lobbyists from public school groups testified against the bill, raising concerns about how it could limit expression, or hurt public schools’ arts programs.

“In many cases, these drag performances are paid for with student dollars, not with public monies,” said Brookings resident Garrett Satterly. “If passed, HB 1116 affects more than just the drag community. It affects small town school districts that don’t have the enrollment to cover all gender specific parts in a theater production, that do rely on taxpayer support.”

But all of the Republican lawmakers on the committee agreed with Karr’s argument that the bill protected freedom of expression, other than that which “existed for the predominant purpose of appealing to a prurient interest.”

It’s that part of the bill which takes explicit aim at events like the one at SDSU, and would exclude public schools’ play productions, Karr argued.

“I am a little surprised today honestly that some members of the public school committee came in today and opposed this,” Rep. Jon Hansen (R-Dell Rapids) said, citing state law’s definition of “prurient interest.” “They cited some examples, but my goodness, I can’t think of examples of events that we would want hosted at our school that would appeal to ‘morbid interest in nudity, sex, or excretion.’”

HB 1116 was the second bill regarding “lewd and lascivious content” that lawmakers on the House State Affairs committee considered Monday morning. The other was Rep. Scott Odenbach’s (R-Spearfish) bill, which would “expand provisions regarding the protection of minors from certain exhibitions.” Specifically, it would add in to state law that “drag performances” were harmful to minors.

Lawmakers on the committee were unable to break a number of 6-6 ties to take action on Odenbach’s HB 1125, and ultimately voted by one to table it.

Rep. Scott Odenbach’s (R-Spearfish) bill, which would have limited kid friendly drag shows writ large, was tabled. That allows the bill to come back for consideration before the committee with a majority vote. Members were unable to break a 6-6 tie on other action.
— Austin Goss (@AustinGossSD) February 13, 2023

That puts a “pause” on the bill that can only be lifted if a majority of a members on the committee agree to lift it.

“I think that we should let this be handled at the level at which it was brought up,” Rep. Becky Drury (R-Rapid City) said in opposition to Odenbach’s bill. “I would prefer that it is handled at the level where it is heard.”

ACLU’s opposes HB 1116 & HB 1125

The ACLU of South Dakota said in a press release that both HB 1116 & HB 1125 violate First Amendment protections and provoke a broader cultural suppression of LGBTQ+ and Two Spirit people.

“Drag is a visual expression and celebration of the culture and resilience of the LGBTQ+ and Two Spirit community, and is paved into the history of the movement,” said Samantha Chapman, ACLU of South Dakota advocacy manager. “It has been a part of the creative community for centuries, and bills like this would have far-reaching implications on the historical tradition of artistic freedom. Let’s call this what it is — an unconstitutional censorship attempt rooted in a coordinated national effort to push LGBTQ+ and Two-Spirit people out of public life.”

HB 1116 was amended during the committee hearing to strike any reference to drag performances, and now it is so vaguely written that potential censorship would affect all South Dakotans. The ACLU also says HB 1125 wrongly insinuates that all instances of drag performance are inherently sexual in nature.

“The First Amendment protects freedom of speech and expression, no matter what you are wearing,” said Samantha Chapman, ACLU of South Dakota advocacy manager. “It’s discriminatory and unconstitutional to single out male and female impersonators in a bid to shut down their speech. If our elected officials are uncomfortable with drag shows – no matter where they are performed – they do not need to attend the performances. Nor do they need to take their kids.”

Drag show restrictions have become a leading cultural issue for legislators across the country. Similar legislation has been filed in Arizona, Arkansas, Florida, Idaho, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia.

“Wherever there is an effort to restrict South Dakotans’ free speech and expression based on the content of that expression, the government has to have a compelling interest in that effort and must write such laws in the least speech-restrictive way possible. The bill’s sponsor was unable to detail how these laws would be enforced, and that should concern every single South Dakotan,” said Chapman.