PIERRE, S.D. — A House committee of the chamber’s top lawmakers approved a motion to move forward one of two bills related to drag shows on Monday, Feb. 13.
In limiting certain types of drag performances in certain contexts, both bills use parts of already existing statutes governing what constitutes obscene conduct, which would require that the work as a whole, “appeals to the prurient interest,” meaning a purely lustful interest, and that it is “patently offensive” to contemporary community standards.
The first bill, House Bill 1125, brought by Rep. Scott Odenbach, of Spearfish, would add drag performances to the state’s obscenity statutes. It would also add the shows to the state’s statutes regarding content harmful to minors.
Odenbach’s bill created a split within the House State Affairs committee due to concerns over how it would be prosecuted and its “maliciously defined” view of drag shows, according to Samantha Chapman, the advocacy manager for the American Civil Liberties Union of South Dakota.
“If someone is dressed as the opposite sex, and say they’re walking down the sidewalk, could that be interpreted as a drag performance and could that then be prosecuted under this law?” Chapman said.
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Still, Odenbach and some of the lawmakers on the committee in favor of the bill noted that the law is narrowly tailored and simply adds drag performances to already existing statutes, allowing carve-outs for works containing “serious literary, artistic, political, or scientific value.”
With the absence of Rep. Oren Lesmeister, a Democrat from Paradise, the 12 remaining committee members came to dead heats on a motion to move Odenbach’s bill to the House floor and a motion to kill the bill entirely.
The committee finally settled on “tabling” the bill, with Rep. James Wangsness, of Miller, flipping his vote to approve a table 7-5. The move delays action on the bill indefinitely but would allow the bill to come back under consideration by the committee with a majority vote.
The next proposal, House Bill 1116, brought by Rep. Chris Karr, of Sioux Falls, sought to limit “lewd or lascivious” content from the state’s public schools, colleges and universities.
The committee saw Karr’s proposal as more narrowly tailored than Odenbach’s, especially following an amendment to strike a definition of drag shows and make clear the ability of the Board of Regents to restrict the presence of minors from certain events. It passed 11-1 and will head to the House floor for consideration later this week.
Both sponsors indicated that the decision to bring these bills stemmed from constituent concerns over a drag show last year at South Dakota State University, leading to Board of Regents President Pam Roberts late last year asking lawmakers to help “clarify” the board’s authority.
“[The Board of Regents] is not taking any stance. They're not opposing it. They didn't come up and oppose it. They asked and are looking for authority. That's the question,” Karr said. “We’ve got to provide them authority so they can make the decisions legally and say, ‘No, according to this, we're not going to allow lewd and lascivious acts on our campus.’”
One question concerning the bill’s targeting of public resources was how it might apply to theater programs in the state, where a lack of participation in the program or the nature of the production may require some students to dress as the other sex.
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“This is more than just drag shows. If passed, House Bill 1116 affects more than just the drag community,” said Garrett Satterly, a Brookings resident who participated in theater throughout his time in school, “It affects small-town school districts that don't have the enrollment to cover all gender-specific parts in a theater production that relies on taxpayer support.”
Those arguments were also made by lobbyists representing public education in the state. Yet those in favor of the bill did not feel it would have that sort of chilling effect on productions with any level of artistic value.
“I don't see how this bill is going to affect that,” Wangsness, who performed in theater productions throughout his time in school as well, said. “Nothing I ever did on stage would have been considered lewd or lascivious and I don't think anybody else would have seen it that way either. I really don't see the threat to that.”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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