Federal judge temporarily blocks Montana’s archaic anti-drag ban

In a small win for LGBTQ+ rights, a federal judge has temporarily stopped Montana’s anti-drag ban. 

On 22 May, Republican governor Greg Gianforte signed House Bill 359 into law, which banned drag performers from reading to children in public schools and libraries.

Like similar laws in Tennessee and Florida, the harmful legislation also targeted drag shows by banning “sexually oriented shows” or obscene performances on public property where children may be present. 

On 6 July, a trans woman, a teacher, and the owners of a local bookstore filed a lawsuit against the state of Montana, per AP News.

In the filing, the plaintiffs described HB359 as a “breathtakingly ambiguous and overbroad bill, motivated by anti-LGBTQ+ animus.”

They also argued that the bill violates their free speech and equal rights protections. 

The organisers of Montana Pride were later added to the suit after Helena city officials were forced to deny their permit requests due to archaic law. 

Fortunately on 26 July, Judge Brian Morris ruled in favour of the plaintiffs and issued a temporary restraining order against the state’s drag ban, just in time for Montana Pride. 

“The thirtieth annual Montana Pride is slated to begin in less than two days. Plaintiffs, along with the approximately 15,000 Montanans who wish to attend the events, cannot avoid chilled speech or exposure to potential civil or criminal liability under H.B. 359 in the absence of the extraordinary remedy of a TRO,” he wrote in his ruling.

“Nothing in the record currently before the Court indicates that speech and expression associated with Montana Pride has harmed minors or any other community members.” 

Montana’s Drag Ban–HB 359–has been temporarily enjoined.

As I said throughout the legislature, drag is art. And drag bans not only infringe on free speech, but they are crafted (by design) to be so broad to allow for discrimination against trans & nonbinary people as well. https://t.co/3esPONpPKo pic.twitter.com/2s4KpDPg4k

— Rep. Zooey Zephyr (@ZoAndBehold) July 28, 2023

Judge Morris also responded to the state’s claim that HB 359 was implemented to protect minors from “obscene material.” 

“Montana law already protects minors from obscene material,” he explained. 

He went on to say that the harmful legislation “contains no carveout for speech or expression with serious literary, artistic, political, or scientific value.” 

“The First Amendment protects at least some of the speech and expression regulated by H.B. 359,” he added. 

Lastly, Morris highlighted the similarities between Montana’s law and the attempted drag bans in Tennessee and Florida – which have also faced temporary bans by local court officials.

“The Court determines that H.B. 359’s statutory scheme likely will disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms, including trans and Two- Spirit people,” Morris noted.

In response to the news, the plaintiffs’ attorney Constance Van Kley, supported the ruling in a statement to local Helena TV station KTVH.

“What today’s hearing really solidified is that nobody seems to know exactly what it says, and with regard to the First Amendment, that is in and of itself a constitutional problem,” she explained. 

Helena City manager Tim Burton and Montana Pride president Kevin Hamm also expressed excitement over the decision in emailed statements to Independent Record. 

“We appreciate Judge Morris’ expediency in issuing a decision prior to the start of the Montana Pride event,” Burton said.

Hamm added: “The city is supportive of Pride; they’ve always been supportive. They threw the state under the bus nicely.” 

While the temporary restraining order against the drag ban ends on 6 August, Morris is expected to schedule another hearing on the matter – which may result in an extended injunction.

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