Drag performance has historically existed at the intersection of artistic expression and legal regulation. At its core, drag is a gendered performance, constituting a deliberate, constructed act in which performers use costume, makeup, choreography, and persona to embody and amplify gender in ways that challenge the assumption that gender is natural, fixed, or binary. This capacity to unsettle normative gender categories is precisely what makes drag the object of legal scrutiny. The argument advanced in this essay is that drag’s gendered performance is the driving force behind contemporary legal conflicts, because the law must first recast drag as inherently sexual to justify regulating what is, in essence, a challenge to traditional gender norms. The Protection of Children Act, passed by the Florida State Legislature in May 2023, and the responding lawsuit filed by Hamburger Mary’s Orlando restaurant and entertainment venue, together illustrate this dynamic. Drawing on Robert Cover’s legal essay “Nomos and Narrative,” this essay will show how Florida’s legislative actions represent an “imperial” nomos while Hamburger Mary’s and the broader drag community embody Cover’s “paideic” nomos, in which meaning is communally created, interpretively open, and resistant to legal closure (Cover 12-13).
Understanding what drag is as an art form is essential before addressing why the law finds it threatening. The word “drag” originated in 19th-century theatrical communities, where male actors playing female roles in Shakespearean productions wore dresses and petticoats that dragged along the floor (BBC). From the beginning, then, drag was defined by the deliberate public enactment of femininity as actors portrayed or took on female identity through repeated on-stage performance. These performances were fundamentally acts of doing: through costuming, movement, and voice, gender was constructed before an audience rather than simply expressed. Viewers, in turn, willingly subscribed to these portrayals, reinforcing the understanding that behavior, not biology, produces gender identity.
Nearly a century later, by the 1920s, drag had migrated far beyond the theater. In Harlem, drag became central to Black and queer communities, who hosted the first drag balls: large gatherings where performers and LGBTQ+ individuals competed in categories including fashion design, lip sync, and runway walking (Smithsonian National Museum of American History). These events were not passive observations of gender but active, communal celebrations in which participants embraced classifications based on performance and style. The deliberate choice to be judged on how one walked, dressed, or moved epitomizes drag as gendered performance in its most public and collective form. Crucially, these drag balls were punishable under laws prohibiting cross-dressing and disorderly conduct, meaning that legal conflict over non-normative gender expression is not new. Both in the 1920s and today, law has perceived drag’s gendered performance as a threat to established order, reading it as prurient or transgressive even in the absence of explicit sexual conduct.
What distinguishes drag from other forms of performance, and what makes it especially legible to the law, is that it is unmistakably a series of choices. Performers deliberately select their costumes, cosmetics, choreography, and persona. Every element is planned and constructed. Lawmakers also recognize this premeditation, and it is precisely the intentionality of drag that unsettles them. Because drag is so consciously designed to command attention, to draw the gaze, to invite interpretation, the state reads this capacity to captivate as something more threatening: a form of influence over its audience. The law then interprets this influence with a kind of seduction, particularly when children are present. In bearing this anxiety, the state reveals a deeper fear: that drag’s deliberate construction and deconstruction of gender roles will prompt audiences, especially young ones, to question the inherentness of those roles. Rather than addressing this fear directly, however, the state must translate it into a legally recognizable category of harm. That category is sexuality.
The policies enacted by the Florida State Legislature under Governor Ron DeSantis’s administration beginning in late 2022 make this strategy visible. State officials began accusing venues of violating public nuisance and “lewd conduct” laws by hosting drag performances where children were present (Fla. Stat. § 827.11 2023). In May 2023, the Florida Senate passed the Protection of Children Act, which prohibits children from attending “adult live performances” (Fla. Stat. § 827.11 2023). The law defines such performances as those depicting or simulating “nudity, sexual conduct, sexual excitement, or specific sexual activities” and that appeal primarily to “prurient, shameful, or morbid interests,” are offensive with respect to what is suitable for children, and lack “serious literary, artistic, political, or scientific value for the age of the child present” (Fla. Stat. § 827.11 2023). On the surface, this language targets explicit sexual content. In practice, it is broad enough to sweep drag performance, involving exaggerated gender expression, not sexual conduct, into the same category as genuinely explicit material. The law does not explain what constitutes “lewd conduct” or “community standards,” leaving those determinations to state enforcement authorities (Fla. Stat. § 827.11 2023).
The Orlando location of Hamburger Mary’s responded by filing a federal lawsuit naming Governor DeSantis, the state of Florida, and Melanie Griffin, Secretary of the Florida Department of Business and Professional Regulation, as defendants. The complaint referenced enforcement actions from December 2022, during which undercover state agents attended an Orlando drag show and, by their own account, found no lewd conduct. Yet, the state moved to revoke the venue’s liquor license regardless. Penalties for violating the Protection of Children Act include prosecution, license revocation, and thousands of dollars in fines. Hamburger Mary’s complaint states that modern drag performances do not involve nudity or sexual conduct, and that the chilling effect of the law caused bookings to fall by twenty percent, with significant economic harm to performers who rely on these events for income (HM Florida-ORL, LLC v. Griffin). At the core of the lawsuit is the argument that the Protection of Children Act is unconstitutional because it restricts protected speech based on the identity of the speaker and because its central terms, “lewd conduct,” “community standards,” and “adult performance,” are too vague to provide fair notice of what is actually prohibited, resulting in arbitrary enforcement and the suppression of legitimate artistic expression (HM Florida-ORL, LLC v. Griffin).
Robert Cover’s framework in “Nomos and Narrative” provides a powerful lens through which to understand this conflict (1983). Cover argues that all legal systems operate within normative universes, or nomoi, which are sustained by the narratives communities tell about themselves, their values, and their obligations (Cover 4). He distinguishes between two modes of maintaining a nomos: the “imperial” and the “paideic” (Cover 12-13). The imperial mode is characterized by centralized, hierarchical authority that imposes uniform meaning through law and coerces compliance through enforcement (Cover 13). The Protection of Children Act exemplifies imperial nomos in its structure and intent. By grouping a wide range of gender performances under the single category of “adult live performance,” the law collapses meaningful distinctions between different types of expression and replaces interpretive flexibility with administrative classification (Fla. Stat. § 827.11 2023). The law does not evaluate drag based on its actual content, context, or intent; it applies a predetermined label that triggers enforcement, thereby producing meaning through designation.
The law’s deliberately vague language reinforces rather than undermines its imperial function. As Claire B. Epstein argues in “Holding Up a Mirror to Hostile Gender Legislation,” anti-drag legislation typically relies on undefined terms to regulate entire categories of artistic expression rather than specific harmful conduct, rendering such statutes unconstitutionally vague because they fail to provide ordinary people with fair notice of what is prohibited (Epstein 819–820). Rather than creating interpretive openness, terms like “lewd conduct” and “community standards” consolidate interpretive authority in the hands of state officials, who then decide arbitrarily which performances cross the line (Fla. Stat. § 827.11 2023). The result is not ambiguity but coercion: performers and venues cannot know in advance whether they are complying with the law, and so the safest response is to stop performing altogether. The stated goal of the law, to protect children, operates as a legitimizing narrative that makes this coercive structure appear neutral and necessary. But the protection-of-children rationale does not actually determine the law’s scope, Rather, the ideology disguises a broader project of suppressing gender expression that unsettles the state’s normative assumptions.
Evaluating state efforts to regulate drag requires first analyzing the profound ideological challenge it poses to traditional gender norms. Drag, by exaggerating and theatricalizing gender, exposes gender as a set of repeated, learned behaviors rather than something determined by biology. A child who encounters drag and observes a man performing femininity with skill and intentionality is exposed to the possibility that gender roles are not natural or inevitable. For the state, which relies on a normative order built on the assumption that gender is fixed and binary, this exposure is threatening not because of anything sexual, but because it destabilizes the social structures of gender hierarchy and heteronormativity that the law implicitly upholds. However, a legal system cannot openly regulate speech on the grounds that it challenges gender norms without confronting serious First Amendment problems. Sexuality, by contrast, is already a recognized regulatory category: obscenity law, age-appropriateness standards, and public decency statutes all provide legal frameworks for restricting sexual content. By recasting drag’s gender performance as sexual display, the state transforms a constitutional problem of restricting political and artistic expression into an apparently legitimate regulatory concern.
In contrast to the state’s imperial project, the drag community embodies what Cover calls paideic nomos: a mode of meaning-making that is communal, interpretive, and educative rather than coercive (Cover 12). Paideia, in Cover’s framework, refers to the shared narratives and practices through which a community teaches its members who they are and how to live together (Cover 12). One of the most visible paideic structures within drag culture is the concept of the chosen family. As Clay M. Williams and Evan Ringel describe in “A Review of Anti-Drag Legislation and Its Implications for Drag Performers’ Mental Health,” chosen families are groups of non-biologically related individuals who provide one another with love, support, and belonging, often formed in response to rejection from biological families (Williams and Ringel). Within drag communities, chosen families typically include drag families composed of established performers who mentor newer artists, transmitting not only craft and history but also specific ways of performing and understanding gender. Through mentorship, newer members learn how to construct gender through movement, costume, and expression, reinforcing the idea that gender is something created and redefined over time. This structure generates meaning through relationship and practice instead of through legal category or institutional designation. It is the opposite of imperial nomos as it cannot be reduced to a single authoritative definition. Instead, new interpretations of gender are continuously produced through legacies of performance. Thus, drag communities do not merely support individuals socially, but actively cultivate gender as a lived and performed practice, directly opposing the state’s attempt to fix meaning as singular and inherently sexual.
The state’s focus on children is not incidental. Childhood is the period during which normative assumptions about gender, identity, and social roles are most deeply established. Exposure to drag during this formative period demonstrates that gender is performed rather than fixed. From the state’s perspective, this discovery would introduce instability into the very foundation of the social order the law seeks to maintain. This is why the law specifically targets children as the vulnerable subjects requiring protection. But drag performances do not harm children in any direct or documentable way. The theatrical devices drag employs such as padding, wigs, exaggerated makeup, elaborate costuming are not instruments of sexual display, but rather serve as instruments of gender commentary. The state must therefore perform a reclassification: it must take elements that signify heightened gender performance and reinterpret them as indicators of sexual content or intent. By equating theatrical exaggeration with prurience, the law converts a challenge to gender norms into a perceived threat to child welfare, providing the justification needed to regulate expression that would otherwise be constitutionally protected. This is the mechanism through which the imperial nomos suppresses paideic meaning through renaming it as harm.
The conflict between Florida’s Protection of Children Act and Hamburger Mary’s lawsuit is, at its deepest level, a struggle over the authority to define meaning. The state uses the law to impose a single, fixed interpretation onto drag: that it is sexual, that it is harmful, and that its proper place is outside the presence of children. Rather than a neutral description, this reclassification is a strategic move designed to bring drag under existing regulatory control, thereby suppressing its ability to challenge the assumption that gender is natural, inevitable, and binary. Hamburger Mary’s lawsuit resists this reclassification by insisting that drag is art, that its meanings are multiple and contested, and that performers and their audiences are capable of determining those meanings for themselves. Robert Cover’s framework of imperial and paideic nomoi clarifies what is at stake: the question is not whether drag belongs in public spaces, as it is framed in legal and political debate, but whether the law can legitimately claim the final word on what any form of expression means (Cover 12-13). Drag, like all paideic practices, resists that finality and it is precisely this resistance that the law seeks to eliminate.
Works Cited
British Broadcasting Corporation. “Drag Performance.” BBC Bitseize. May 2019. https://www.bbc.co.uk/bitesize/articles/zbkmkmn
Cover, Robert M. “Nomos and Narrative.” Harvard Law Review 97, no. 4 (1983): 4-68.
Epstein, Claire B. “Holding Up a Mirror to Hostile Gender Legislation: The Impact of Drag Bans on the Theater Industry.” 45 Pace L. Rev. 811 (2025) DOI: https://doi.org/10.58948/2331-3528.2131
Florida. Florida Statutes. § 827.11 (2023)
HM Florida-ORL, LLC v. Griffin. United States District Court for the Middle District of Florida.
Smithsonian National Museum of American History. “Queens and Queers: The Rise of Drag Ball Culture in the 1920s.” 11 April 2016 https://americanhistory.si.edu/explore/stories/queens-and-queers-rise-drag-ball-culture-1920s
Williams, C. M., & Ringel, E. (2026). “A Review of Anti-Drag Legislation and Its Implications for Drag Performers’ Mental Health.” Journal of Homosexuality, 73(7), 1742–1765. https://doi.org/10.1080/00918369.2025.2527262
