A federal appeals court has upheld a Tennessee law banning drag show performances in front of children.

In an opinion published July 18, a three-judge panel on the 6th U.S. Circuit Court of Appeals upheld Tennessee’s Adult Entertainment Act. Enacted in 2023, the legislation declares that “it is an offense for a person to perform adult cabaret entertainment” at any location where the show could be “viewed by a person who is not an adult.”

“Adult cabaret entertainment” is defined in the legislation to include performances featuring “topless dancers, go-go dancers, exotic dancers, male or female impersonators, or similar entertainers.”

A federal judge in the U.S. District Court for the Western District of Tennessee put the law on hold before it was to take effect in March 2023, describing it as an “unconstitutional restriction on free speech under the First Amendment.”

The district court decision only applied to Shelby County, the largest county in the state and home to Memphis. The LGBTQ theatre company Friends of George’s, identified in the 6th Circuit opinion as “an organization that ‘aims to provide a space outside of bars and clubs where people can enjoy drag shows,’” performs most of its shows in Shelby County and successfully sought an opinion from a federal court preventing the enforcement of the Adult Entertainment Act there. 

But last week’s decision by the 6th Circuit reversed the lower court’s decision. Judge John Nalbandian, appointed to the bench by former President Donald Trump, authored the court’s opinion. He was joined by George H.W. Bush-appointed Judge Edward Siler. Judge Andre Mathis, appointed to the bench by President Joe Biden, dissented. 

In a statement, Republican Attorney General Jonathan Skrmetti said that Tennessee’s Adult Entertainment Act has been “consistently misrepresented since its adoption.”

“As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression,” Skrmetti said. “But as the Court noted, Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children.”

Tennessee’s law criminalizing drag performances viewed by minors classifies a first offense as a Class A misdemeanor (up to 11 months, 29 days in prison and/or a $2,500 fine) and a second offense as a Class E felony (up to 6 years in prison and/or a $3,000 fine).

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