Federal judge blocks Montana from enforcing bill restricting drag performances

Helena Federal Courthouse
Posted at 6:44 PM, Oct 13, 2023

MISSOULA — A federal judge in Helena has blocked the state of Montana from enforcing a new state law restricting drag performances, while the suit challenging the law continues.

U.S. District Judge Brian Morris sided with plaintiffs, issuing a preliminary injunction against House Bill 359 on Friday. He said those challenging the bill had shown they were likely to succeed in their claims that it restricted rights of free expression.

“H.B. 359 targets protected speech and expression,” Morris said in his ruling. “The statutory text and legislative history evince anti-LGBTQ+ animus. No evidence before the Court indicates that minors face any harm from drag-related events or other speech and expression critical of gender norms. H.B. 359’s terms prove vague and overbroad, chilling protected speech and creating a risk of disproportionate enforcement against trans, Two-Spirit, and gender nonconforming people.”

HB 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.”

Plaintiffs, including businesses, organizations and several individuals, argued the law had a chilling effect on free expression and created the possibility of selective enforcement.

Attorney General Austin Knudsen and Superintendent of Public Instruction Elsie Arntzen are the defendants in the case. Their attorneys argued the state has a legitimate interest in protecting minors from performances leaders believe are harmful for them, and that should be balanced against any limiting effects on speech.