Banning drag, refusing medical care included in Kentucky’s 9 anti-LGBTQ+ bills

Kentucky legislators have now introduced a total of 9 anti-LGBTQ+ bills in the 2024 legislative session. The newest of these bills includes: Senate Bill 147, House Bill 402, House Bill 49, House Bill 358, House Bill 390, and Senate Bill 147

This is following a continuation of last year’s legislative session where at least 9 anti-LGBTQ+ bills were introduced, as well as a continued national trend. 2023 was the fourth consecutive record-breaking year for anti-trans legislation in the United States.

Kentucky lawmakers have until the end of February to file bills, and we could see more anti-LGBTQ+ legislation arise – leading to another year of a record-breaking amount of anti-LGBTQ+ bills. 

Chris Hartman, executive director of Kentucky’s LGBTQ+ advocacy organization, the Fairness Campaign said Kentucky’s 2024 “Slate of Hate” is sadly shaping up to be just as threatening as last year’s. 

“We’ve already seen the re-introduction of last session’s failed anti-drag bills, a rehashing of Senate Bill 150 that requires forced outing of transgender students in school, and attacks on healthcare access and Fairness Ordinances across Kentucky,” he said.

Known as Anti-Drag – SB 147 and HB 402

Two of the new bills, SB 147 and HB 402, would regulate drag in the state of Kentucky. Both of these bills were filed on January 30th, after a news release from the Kentucky Senate Republicans stated an intent to file. 

These bills closely mirror SB 115, an anti-drag bill from the 2023 Kentucky legislative session. The 2024 anti-drag bills are framed in the news release as public protection, banning drag from performing in public places where minors could be present, including parks, schools, libraries, and more. The bills would categorize all drag performances as strictly “adult oriented” and off limits to minors. This is linked to the idea that drag shows “sexualize” or “groom” children. 

The Anti-Defamation League, an international Jewish non-governmental organization and advocacy group specializing in civil rights law and combating antisemitism and extremism, names grooming as a “dangerous, bigoted lie” causing spikes in “harassment, threats, and violence targeting the LGBTQ+ community.”

This opposition to drag shows (both in Kentucky and nationwide) has been framed as protecting children, which has been named a homophobic trope rooted in anti-LGBTQ+ panic. The idea that drag queens and the LGBTQ+ community are grooming/ harming young children is not only unsubstantiated, but causing “immense harm” to the LGBTQ+ community. 

Sen. Lindsey Tichenor, R-Smithfield was the bill sponsor of SB 115, the anti-drag bill from Kentucky’s 2023 legislative session. She is now sponsoring SB 147. SB 115 was introduced in February of last year, and it was on its “deathbed” by March. The bill passed in the Senate but not the House. Bills have to pass both chambers before landing on the governor’s desk, where the governor has the option to sign the bill into law or veto it entirely. There was tension in both the House and the Senate around Kentucky’s anti-drag bill last year, barring its passing, and that was not limited to Kentucky. That tension expanded from the legislative space and into the legal space, where enforcing the bill became a federal issue across the United States.

Last year, Tennessee became the first state to ban public drag shows. The law was deemed unconstitutional by a Trump appointed federal judge last June, who called it overly broad and a violation of the First Amendment. This bill was one of many anti-drag regulation attempts across the United States. There were 9 states where anti-drag legislation was introduced in 2023. Legal attention followed the bills, with a repeated concern for First Amendment rights. Florida, Montana, Tennessee, and Texas all had laws passed that were deemed unenforceable due to legal blocks.

The Florida bill had the same framing of “protecting children” as we are now seeing in Kentucky. This was blocked by a federal judge, also deciding that the regulation was “sweeping,” “poorly defined, and risking outlawing constitutionally protected expression.”

The anti-drag bills around the United States were all similar last year, with violations of the law including paying a fine. The burden of paying either fell on the drag performer, the business hosting, or both. The bills in Kentucky this year shift the burden of payment from the drag performer to businesses, which punishes LGBTQ+ friendly businesses and disincentivizes businesses from working with drag performers. This creates harm for the LGBTQ+ community while creating “economic costs” and “lost revenue” for local economies, impacting drag performers, business owners, and community members- LGBTQ+ or not. 

With both of Kentucky’s 2024 anti-drag bills having language around violations of the law including paying a fine, this determines a civil cause of action to predetermine how a legal case would go. This makes it easier for people to sue based on alleged harm – which is being named as public displays of queerness in SB 147,

“…exhibiting an exaggerated gender expression that is inconsistent with the biological sex of the performer using clothing, makeup, or other physical markers…”

The section is defining a drag performance, also naming aspects of performance. But, this portion still codes into law a definition of regulating queerness, and federal courts and legal advocates have expressed concern in violation of constitutional freedoms.

We saw this in many other anti-LGBTQ+ bills, including the anti-drag bill in Montana in 2023 – which was banned from being enforced on First Amendment rights concerns. 

The federal judge who enforced the block wrote that the law would “disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms.” As well, following other bills deemed by federal judges as sweeping and extreme, the Montana bill “encourage[d] arbitrary and discriminatory enforcement.”

The bottom line here is that businesses will be legally at risk if they work with drag performers, and public displays of queerness can be twisted to sue people who are deemed as dressing exaggeratedly queer in public. It increases liability for being queer. Both SB 147 and HB 402 make it easier to determine legal causes of action in Kentucky, where people could claim “harm” from the LGBTQ+ community. But, this is not limited to the anti-drag bills.

Known as Weakening Civil Rights Laws + Healthcare Access – HB 49

HB 49, also of the 9 anti-LGBTQ+ bills currently in the 2024 Kentucky legislative session, is “AN ACT relating to the recruitment and retention of medical professionals and declaring an emergency.” 

The bill sets it up for medical providers to be able to deny treatment to any member of the LGBTQ+ community, and sets up protections for them to not get sued for discrimination. The bill is narratively framed as a religious exemption for medical professionals to not have to perform gender affirming-healthcare, with the implication that this is causing an issue with keeping doctors in Kentucky. This framing is similar to HB 470 from last year’s Kentucky legislative session. 

In a 2023 Courier Journal article by Olivia Krauth, she outlines how HB 470 would have required health care providers to report providing any kind of gender-affirming care to someone under 18 within 30 days. Criminal charges were included in the bill for non-compliant health care providers, and there was included liability for providers if someone wanted to sue over services provided. And, providers who refused to provide gender-affirming care would be protected against legal, professional licensing, and disciplinary pursuits.

HB 470 did not pass, and there were doctors and medical professionals at the legislative session stressing how this framing of legislation was not addressing any real issue in medicine and directly contradictory to all standards of medical care. This language has been revived in HB 49, with the bill,

“prohibit[ing] discrimination against medical care providers who decline to perform procedures that violate their conscience; grant providers the right not to participate in or pay for services that violate their conscience; exempt providers from liability for exercising these rights, prohibit the State Board of Medical Licensure from reprimanding medical practitioners and require the board to provide complaints it has received to medical practitioners, establish a civil cause of action for persons injured by violations…”

In each of these actions, it makes it very complicated to provide medical care to LGBTQ+ individuals, namely trans people. It complicates matters for the patients, for insurance providers, and for medical professionals. Again, it adds liability to being and interacting with LGBTQ+ folks, attempting to codify discrimination and harm into law. 

Known as a Barrier to Accurate IDs – HB 358

In addition to the anti-drag bills and the medical access regulation bill, there is HB 358, requiring “the biological sex designation on a birth certificate to be either male or female and prohibit[ing] a nonbinary or any symbol representing a nonbinary designation including the letter ‘X.’” 

Known as Weakening Civil Rights Laws + Re-Definition of Sex – HB 390

Paired with this sex designation bill is HB 390, “AN ACT relating to sex-based classifications.” The bill attempts to define legally what a boy and a girl are. Further, it requires any public school, public school district, state agency, department, local government, special district, or any political subdivision of those entities that collects vital statistics to identify each person as either male or female. 

This bill is being cited as the “Kentucky Women’s Bill of Rights,” wherein the common dog whistle equating trans rights to being anti-woman is employed. This is a “cis-woman protective argument,” which journalists, advocates, and academics have been naming for years now as a way to oppress the trans community while framing it as protecting women.

Both HB 358 and HB 390 serve to codify the gender binary, which circles us back to the anti-drag bills, SB 147 and HB 402. The regulation of drag requires a legal definition of the gender binary and requires adherence to it, with the threat of being sued being waived. There is so much subjectivity in flagging who is of what gender, because gender is something personal and inconsistent from person to person. There is no way to objectively determine someone’s sex without making assumptions and/or violating the person. 

From legislation barring women from wearing trousers to legislation targeting drag, attempting to legislate definitions around the gender binary is not new. But, this nationally coordinated influx of anti-LGBTQ+ legislation is unprecedented. In the 1940s-1960s, police arrested LGBTQ+ people in New York City based on the informal three-article rule. This rule required people to wear at least three pieces of clothing that matched the gender they were assigned at birth. Police used this rule, pulled from masquerade laws in NY, to check people’s underwear, arrest, and bring violence to the LGBTQ+ community.

The three-article rule was widely discussed in the LGBTQ community, including in “reports about arrests in Greenwich Village in the weeks and months leading up to the 1969 Stonewall Riots.” This is to say that there is history behind legislating queerness, and there is history behind fighting it. We are not here without history behind us. 

This story is part of a series from Queer Kentucky focused on following the 2024 Kentucky General Assembly from a queer lens. Follow Queer Kentucky on your favorite social media platform to stay up-to-date with our GA24 coverage.