South Dakota lawmakers introduced two different bills Tuesday that would prohibit events like a recent drag show held at South Dakota State University from ever occurring again.
House Bill 1116 prohibits the “use of state resources in hosting lewd or lascivious content,” according to the title. And second bill, House Bill 1125, was filed shortly after HB 1116 on Tuesday and includes drag performances as something minors could not see in the future.
The first bill specifically prohibits the Board of Regents, Board of Technical Education, institutions under their control, state agencies or institutions under the state’s control, and public school districts from authorizing, spending money or using state owned-facility to develop, implement, facilitate, host, promote or fund any “lewd or lascivious content.”
Such content would include any specific sexual activity, anatomical areas, nude or seminude adults and adults who remove clothing for the entertainment of one or more people.
The bill, if signed into law this legislative session, would also prohibit any performance where a performer “exhibits a gender identity that is different from the performer’s” sex assigned at birth “through the use of clothing, makeup or other physical markers for the predominant purpose of appealing to a prurient interest.”
This is similar to the definition of drag, which originated in 19th century British theater and has heavy roots in modern LGBTQ+ culture. It is a form of performance and entertainment that challenges assumptions of gender identity and expression.
Drag queen Treasure Red Rose, of Kearney, Neb., performs July
14, 2018 during the seventh annual Black Hills Pride Festival at
Memorial Park. The event, which included entertainment, food trucks
and more than 50 vendors, was organized by Black Hills Center for
The second bill defines "drag performance" as "singing, speaking, dancing, acting, simulation, or pantomiming, where a performer, in a lewd and lascivious manner, and in the presence of others, exhibits a gender identity that is different from the performer's biological sex through the use of clothing, makeup, or other physical markers."
Bill likely sparked by SDSU drag show
Introduction of HB 1116 and HB 1125 follows controversy over the annual hosting of a drag show by one SDSU student group. The SDSU Gender and Sexualities Alliance held its annual show Nov. 16, and the event was promoted on the calendar on the university’s website as family-friendly.
Notice of the event drew consternation from some conservative lawmakers, because it was initially unclear to that the event was sponsored not by the university, but by a student group.
Republican Rep. Chris Karr, chair of the House Appropriations Committee and co-chair of the Joint Committee on Appropriations, wrote a letter to SDSU President Barry Dunn and Board of Regents Executive Director Brian Maher ahead of the event. They questioned if it would use taxpayers’ money and whether it was appropriate.
At least two other Republican representatives shared similar sentiments online. Rep. Jon Hansen called on Dunn to limit children from attending and called the event “completely inappropriate.” Rep. Scott Odenbach called the event “unbelievable and unacceptable.”
One day before the event, SDSU President Barry Dunn apologized for the miscommunication surrounding the event and clarified it was sponsored by a recognized student organization, not the university or its multicultural affairs office. Registered student organizations can sponsor lawful events on campus under state codified law and applicable policy, he said.
Soon after, conservatives and lawmakers took their complaints about the event to the public comment time at the Regents meeting held Dec. 8 in Rapid City, with one speaker, Republican Sen. Julie Frye-Mueller, signaling she would introduce legislation to quell this issue. And she did just that Tuesday by signing onto HB 1116.
During that meeting, Maher said the BOR won’t discriminate against student organizations based on their content, viewpoints or activity, and that access to facilities is equally available to all recognized student organizations.
More than 10 days after that, BOR President Pam Roberts announced a moratorium on minors’ attendance of any events sponsored by student organizations on campus for the time being. She also announced a meeting would be held Dec. 21 in executive session − behind closed doors − to discuss the show and student activities in general.
After that closed meeting, Regents voted to direct the central office to review all upcoming campus events minors could attend, and to draft a policy concerning minors’ attendance of campus events.
Impacts and reaction
Drag-like performances have been seen all across the state in public colleges, whether in designated drag events hosted by student groups, in theatrical performances and in opera performances.
The Board of Regents is in the process of reviewing the bill and the impacts the language could have for South Dakota's public universities, communications director Shuree Mortenson said. The BOR plans to pay close attention to this legislation and the actions legislators ultimately take, she said.
The ACLU of South Dakota opposes the bill, because it's the government deciding which types of theater and entertainment are allowable, and that bills like this are overly broad in scope and threaten established educational standards, advocacy manager Samantha Chapman said in a statement.
“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,” Chapman explained. “It is performance art and entertainment with elements of singing, dancing, lip syncing and costuming.”
Chapman said the bill violates the First Amendment rights of students and student organizations in South Dakota to build community and express themselves through drag performances.
“Attempting to shape the narrative by implying that drag is intrinsically lewd or lascivious or that gay and trans spaces shouldn’t exist in public education is textbook bigotry,” Chapman said.
The bill could also prevent schools from teaching certain pieces of classic literature depicting the existence of transgender individuals and drag performances that have long been included in educational standards, such as Shakespeare’s "Twelfth Night" and "Merchant of Venice," "Yentl," "Tootsie” and more, Chapman said.
“We don’t want the government deciding which types of theater and entertainment are allowable and which aren’t beyond what is already an established constitutional norm,” Chapman said. “Bills like this are overly broad in scope and threaten established educational standards.”
Sioux Falls Pride doesn't support this bill, marketing director Rachel Polan said.
"While the state is entitled to regulate their funds, they are not entitled to violate the people of South Dakota's First Amendment right to freedom of expression," Polan said. "Gender expression is included in this right, as is protest, assembly, and the right speak one's mind."
SDSU student and gay rights activist Cole Sartell said he doesn’t see how this would apply to the GSA’s drag show, because the event was “neither lewd nor lascivious.”
In a news release sent Dec. 21, Roberts said the BOR respects the First Amendment, “but none of us are happy about children being encouraged to participate in this event on a university campus.”
"We want our campuses to be safe and welcoming places for students, staff, and visitors of all ages," Roberts added.
Libby Skarin, campaigns director for the ACLU of South Dakota, tweeted Dec. 8 the government can’t ban forms on-campus or public speech like drag shows.
“The First Amendment applies to drag shows, period,” Skarin tweeted. “State legislators need to stop wasting everyone’s time with blatantly unconstitutional bills.”