PIERRE, S.D. (KELO) — Months after a student organization hosted a drag show event on the South Dakota State University campus, a lawmaker is moving to prevent it from happening again.

HB 1116 was filed Tuesday by Republican Representative Chris Karr and has the support of 15 other lawmakers. The bill states that any institution under the control of the Board of Regents, state agency or public school district cannot use public funds or a state-owned facility or property to “develop, implement, facilitate, host, promote, or fund any lewd or lascivious content.”

The bill defines “lewd or lascivious content” as the following:

  1. Any specific sexual activity, as defined in § 11-12-1;
  2. Any specific anatomical areas, as defined in § 11-12-1;
  3. Nude or seminude adults, as defined in § 11-12-1;
  4. Adults who remove clothing for the entertainment of one or more individuals; or
  5. Any physical human body activity, whether performed alone or with other persons, including singing, speaking, dancing, acting, simulation, or pantomiming, where a performer exhibits a gender identity that is different from the performer’s biological sex through the use of clothing, makeup, or other physical markers, for the predominant purpose of appealing to a prurient interest.

The drag show that prompted backlash from lawmakers and the Board of Regents was hosted by the Gender and Sexualities Alliance group at SDSU in November. The event was not supported by university funds according to President Barry Dunn.

“Registered student organizations are free to sponsor lawful events on campus in accordance with SDCL 13-53-52 and applicable policy,” Dunn said in a statement following the backlash.

Proponents, opponents want to protect First Amendment rights

In December, the Board of Regents met to discuss the event and decided to place a moratorium on minors attending events hosted by student organizations on campus.

“We respect the First Amendment, but none of us are happy about children being encouraged to participate in this event on a university campus,” President Pam Roberts said.

At the time, Roberts said that the Board was asking lawmakers to draft legislation to clarify the law on this topic.

Bill sponsor, Republican Chris Karr, told KELOLAND News that the Board of Regents and the university were both looking for a way to implement a policy while avoiding infringing on First Amendment rights.

“So, I started working with several individuals, Representative Odenbach, and then our LRC staff and I have been in contact and working with Nathan Lukkes from the Board of Regents, he’s their attorney, as well as Executive Director Maher on this issue,” Karr said Tuesday.

The bill is drafted in a way that follows other state’s legislation, such as Arkansas and Arizona, while also looking at Supreme Court decisions and utilizing the “Miller test.

Samantha Chapman, an advocacy manager with the American Civil Liberties Union, said that the organization has already heard from students who are concerned with their educational access.

“The ACLU is opposed, full stop,” Chapman said. “The First Amendment protects the freedom of speech and expression, that includes in higher education and in schools.”

Karr’s concerns after the drag show at SDSU was for children and the use of taxpayer money, he said.

“They should not be able to use state-run facilities or resources in any way, shape or form to be part of an event that falls into that category again,” Karr said.

Chapman, and the ACLU, disagree.

“State funding does not preclude First Amendment Constitutional rights in any way,” Chapman said.

Where’s the line?

One big concern of the ACLU’s with the bill is the “broad” scope of it.

“The legislature can’t dictate what people can and can’t say,” Chapman said. “It’s free speech, it’s protected by the First Amendment regardless of where it’s taking place. I would say that the way this bill is written, it’s overly broad, it’s lacking clear definitions on a lot of different things and it raises a lot of concerns on unintended, or intended, negative consequences for the LGBTQ-Two Spirit community.”

Chapman is worried not only how it would impact LGBTQ and Two-Spirit students and clubs, but book clubs, theater and classrooms.

“I think that the bill is a huge overreach and is encompassing a lot more than even intended,” Chapman said.

Karr says this bill will still allow people to be “who they are” but “it doesn’t allow for events using state resources that would fall into something that doesn’t have any redeeming quality based on what the United States Supreme Court has spelled out using the Miller test.”

The bill will not impact books or theatrical productions, Karr added.

“It’s gotta be for prurient interest at its base but also it does spell out that it has to be for scientific, artistic, you know, all these different things,” Karr said.

The bill follows a trend of similar legislation nationwide that deals with drag performances. Karr said that while some lawmakers may watch national issues and legislate proactively, he decided to bring HB 1116 forward after the SDSU event.

“That was the evidence that it’s here that there’s an issue and that there’s obviously a large group of people that, you know, that are organizing this for some reason, but I don’t think it is anything that represents a majority of South Dakotans in their values,” Karr said.

From the ACLU’s perspective, the bill is a continuation of an overreaching legislature.

“We’ve seen the legislature try to dictate who can use which bathroom in schools, we’ve seen the legislature pass laws about requirements for intellectual diversity and now this session attempt to repeal those same laws because they don’t apparently like the way they’ve been applied,” Chapman said. “It’s clearly a pattern, a demonstrated pattern going farther and farther and farther. My question is, where does it end?”

Karr believes this legislation is a good example of a “collaborative effort” between the legislature, the university and the Board of Regents.

“They want some guidance, but they also don’t want to infringe on the First Amendment and nobody does. I don’t want that either,” Karr said. “So, we’re trying to be responsible for drafting this.”