Republicans want to ban drag. It could land women in jail. | Opinion

The Ohio General Assembly is doing its best to ensure that the phrase “It’s a free country” becomes a dead letter here.

Not content with enforcing Ohio’s criminal ban on supplying obscene materials to minors, culture war politicians are attempting to enact a vague and ill-conceived law prohibiting public drag shows and regulating women’s clothing in an unprecedented manner.

Drag performances, like other types of entertainment such as dance, theater and film, are forms of artistic expression that is squarely protected by the U.S. Constitution.

Drag shows often have elements of humor, athleticism and satire, but at their core, such performances are political statements that challenge societal assumptions surrounding gender. They satirize gender stereotypes by exaggerating and mocking notions of what is acceptable male and female behavior.

Turning police officers into art critics and theater experts

It is a basic precept of constitutional law that the government cannot dictate what viewpoints Americans are allowed to express surrounding gender or almost anything else. As the U.S. Supreme Court recently explained in Chiles v. Salazar, which struck down a Colorado law that banned therapists from engaging in conversion therapy discouraging homosexuality, “The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

The Ohio “Indecent Exposure Modernization Act,” which recently passed the House and is pending in the Senate, attempts to enforce gender orthodoxy under the guise of preventing “indecent exposure.” The proposal defines a new type of indecency that must be confined to adult cabarets.

These are performances that are "harmful to minors" (a vague term that is open to interpretation by police) that feature performers “who exhibit a gender identity that is different from the performer’s ... biological sex” using clothing, makeup, prosthetics or other physical markers.

Think for a moment about what the legislature is trying to define as indecent, criminal speech.

It could be a performance of the film "Mrs. Doubtfire" starring Robin Williams, who dresses as an older nanny to be near his children (if a police officer considered this “harmful to minors”). It might be Shakespeare’s cross-dressing comedy "As You Like It" where Rosalind, disguised as a male Ganymede, falls in love with Orlando.

With a faint nod to the constraints of the Constitution, the proposed bill purports to create an exception for what it calls “bona fide film, theatrical, or other artistic endeavor or performance that is not obscene or harmful to juveniles.” However, this exception is ridiculously vague.

What is a “bona fide” artistic endeavor? Who is to decide? Are we to rely on police officers to be art critics and theater experts? How are they to determine which “nonbiological” gender performances are criminal acts and which are “bona fide” art?

Drag queens are not the only ones at risk

And it is not just drag shows that are placed at risk by these politicians. In its puritanical zeal to root out new forms of “indecency,” the legislation even bans sports bras and other kinds of women’s clothing when worn in “physical proximity” to those who are not members of the woman’s household.

It does this by radically expanding the definition of public indecency. The bill replaces the definitional provision “private parts” with “private area,” a term that makes criminally indecent female breasts “where nude or covered by an undergarment.” This means that police could arrest any woman in public whose breasts they deem to be covered “only” by “an undergarment.”

Under the proposal, women in Ohio would be at risk for arrest any time they wear a bikini swimsuit, halter top or T-shirt without a bra.

Perhaps these politicians will also wish to fund an indecency police force, and officers can comb the streets to ensure that women are dressed with sufficient modesty to satisfy these “mullahs” of the legislature.

Obviously, this proposed law is inconsistent with basic notions of freedom that have prevailed in America within living memory. However, if we do not speak up to our legislators soon and tell them to keep their noses out of our closets and entertainment, we may as well rename Columbus the “Tehran on the Scioto.”

Dan Kobil is a professor of constitutional law at Capital University Law School in Columbus, Ohio. This column originally appeared in the Columbus Dispatch.