BOZEMAN — A panel of federal judges is continuing to block a Montana law that restricted drag performances.
On Friday, three judges from the U.S. 9th Circuit Court of Appeals upheld a preliminary injunction, which has kept the state from enforcing House Bill 359 since 2023.
“H.B. 359’s drag-story-hour and sexually-oriented performance provisions restrict protected speech based on content,” wrote Judge Jennifer Sung. “As such, they are subject to strict scrutiny. Defendants have not met their heavy burden to show that H.B. 359 is narrowly tailored to further a compelling governmental interest.”
House Bill 359, passed during the Montana Legislature’s 2023 session and signed by Gov. Greg Gianforte, prohibits schools and libraries that receive state funding from hosting “drag story hours” during regular operating hours or a sponsored extracurricular activity. It defines drag story hours as when a performer with “a flamboyant or parodic” persona and “glamorous or exaggerated costumes and makeup” reads children’s books or does other learning activities with children present.
The law also bans “sexually oriented performances” in front of minors – either on public property or at a business – and it bans them altogether in locations that receive state funding. It defines “sexually oriented” to include “stripping, salacious dancing,” and any other “lewd or lascivious depiction or description.”
The state argued they had a legitimate interest in protecting minors from performances that leaders believe are harmful to them. However, a group of plaintiffs – including businesses, organizations and individuals – filed suit, saying the law had a chilling effect on free expression and created the possibility of selective enforcement.
In her opinion, Sung said the restrictions on drag performances appeared to be content-based – treating the same type of conduct differently based on an “expressive aspect.” She said the descriptions within the law would seemingly restrict a much broader range of activity than the common understanding of drag performances – but that if it had more specifically targeted, that wouldn’t have resolved constitutional issues.
“Rather, it would only make it more clear that the restriction is content based, prohibiting the expression of disfavored views about gender, including expression that ‘caricature[s] or challenge[s] gender stereotypes,’” wrote Sung.
Sung said the state does have an interest in protecting minors from “indecent” content, but that there were ways to achieve that goal that were “less restrictive of speech rights and more respectful of parental authority.”
Attorney General Austin Knudsen's office defended HB 359.
“We are disappointed the Court ruled in favor of leftists who would rather prioritize sexual grooming in schools and libraries than protect children, which is exactly what HB 359 intended to do,” Amanda Braynack, a spokesperson for the office, said in a statement. “At this time, we are still reviewing the opinion and determining our options.”
Read the full judges' opinion:
Editor's Note: This story has been updated to include a statement from Attorney General Austin Knudsen's office.
