It’s not just drag artists who need to worry about bounty hunting bills

OPINION: With a new anti-drag bill in Texas, Republicans are once again attempting to use the bounty system to bypass constitutional law

Last Thursday, Texas Republican state representative Steve Toth introduced a bill that would allow anybody in the state to sue someone who hosts or performs in drag in the presence of a child.

The bill would essentially place a legal bounty targeting drag performers, allowing individuals to sue drag artists under certain conditions, in what can only be described as the latest step in the quickly escalating culture war against LGBTQ2S+ rights. This bill, like other proposed restrictions on drag, are so broadly worded that they could end up applying to any trans person just existing in public under a number of normal circumstances.

The bill defines a drag performance as “a performance in which a performer exhibits a gender that is different than the performer’s gender recorded at birth using clothing, makeup or other physical markers and sings, lip syncs, dances …” I could easily see an overzealous transphobe trying to apply this to a trans woman humming to herself or bobbing her head and singing to music in her ear buds while walking down the street.

Right-wing attacks against drag performers have grown out of the larger gender panic currently gripping the western conservative political world and bleeding into some centrist circles as well. After largely conservative media pundits stoked outrage by sharing misleading photos of a drag show for kids where a performer allegedly exposed herself to the audience (this claim has been debunked), dozens of armed protests against local drag queen story hours have popped up all over the U.S.—and have started to occur in Canada as well.

But legislating against drag shows has proven a difficult step for conservative lawmakers. Dozens of states have proposed drag bans in the past year, but only one, Tennessee, has successfully passed one.

In Texas’ case, Rep. Toth is borrowing from his party’s anti-abortion playbook by proposing a bounty-type system of enforcement.

Three years ago, anti-choice legislators and activists were searching for the magic bullet legislation that would finally kill off Roe v. Wade with a newly minted conservative majority at the Supreme Court. Republican legal minds finally settled on a unique enforcement method to bypass decades of court rulings: a bounty system.

By relinquishing state enforcement of abortion bans and instead creating a legal right for private citizens to sue for individual citizens, conservatives essentially bypassed years of precedence laying out how states could enforce anti-abortion legislation.

U.S. District Court Judge Robert Pitman explained how SB 8, the Texas abortion bounty hunter law, intentionally skirted questions of constitutionality through its unique enforcement method in his October 2021 judgment, which temporarily blocked the law.

 

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.… It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.”

Ironically, the bounty hunter model of law did not originate within the more recent parts of the anti-abortion movement, but was actually first attempted in the bathroom bill era—in which bills were created in an attempt to stop trans people from using the bathrooms aligned with their genders—circa 2016.

Republicans in the Kansas state legislature proposed the Student Physical Privacy Act in 2016 at the height of the trans bathroom panic that saw North Carolina’s passage of the HB2 bathroom bill.

The SPPA proposed allowing cis students or parents of cis students to sue the school for $2,500 for each time they found themselves sharing a bathroom with a trans student. The bill ended up going nowhere and the tactic eventually was recycled in Texas to fight Roe.

Emboldened by their success against abortion rights, conservatives have started applying this “unprecedented and transparent statutory scheme” against another old political enemy: queer and trans people.

Toth’s proposal leverages the ongoing anti-trans moral panic against anyone willing to host or perform gender nonconformity in public entertainment. The laws specifically empower and deputize individual conservatives to control the lives of their neighbours. Those armed protestors now rallying outside of drag queen story hours? Under these laws, each of them could bring a lawsuit against the venue hosting. Few entities would be willing to risk the legal exposure involved in hosting such an event, resulting in a de facto ban.

“In this terrifying political moment, we queers, trans people and cis women must stick together to fight back against our common enemy.”

That would be bad on its own, but I want to take a step back and take a look at the larger picture.

These are the same people (Republicans) targeting different groups of people (women, drag queens and trans people) with the same tactics (bounty hunter laws). In this terrifying political moment, we queers, trans people and cis women must stick together to fight back against our common enemy.

Movements like the “Drop the T” movement, or the LGB Alliance, which seek to isolate trans people as a political target are short-sighted at best and actively harmful at worst. Those gays, lesbians and “radical feminists” currently furiously working to marginalize trans people are next on the chopping block, conservatives are sure of that.

The fact that one group is under attack should be motivation enough for others to have each other’s backs, but unfortunately we live in a world where most people won’t care unless there’s a risk to themself or their rights.

All of our rights are in a tremendously precarious position in the U.S. Roe was not just a precedent about abortion, it was the foundation for legal privacy rights for a vast swath of marginalized communities. Having Roe in place under law established that the government had limits into how deeply it could intervene in the bodily autonomy and decisions individuals make about their own bodies. It was one of the citations in cases like Obergefell v. Hodges, which made marriage equality the law of the land or Lawrence v. Texas, which made anti-sodomy laws unconstitutional.

Texas’ bounty law ended up bringing down Roe, and some conservatives on the Supreme Court have indicated that LGBTQ2S+ rights are next on the chopping block.

Solidarity is our only hope. United we stand, divided we fall. There’s just no getting around it.

Katelyn Burns is a freelance journalist and columnist for Xtra and MSNBC. She was the first openly trans Capitol Hill reporter in U.S. history.

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