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Florida's Drag Ban Blocked by Judge in Hamburger Mary's Case

Florida's Drag Ban Blocked by Judge in Hamburger Mary's Case

Florida Gov. Ron DeSantis
The Old Major/Shutterstock

This is the second defeat for Gov. Ron DeSantis's anti-LGBTQ+ agenda this week and the third this month.

A federal judge in Orlando Friday temporarily blocked a Florida law widely seen as an attack on drag. That's the second major loss in court for Gov. Ron DeSantis this week, coming days after another judge struck down the state's ban on Medicaid coverage of gender-affirming care.

U.S. District Judge Gregory Presnell ruled against the drag ban after owners of restaurant Hamburger Mary’s sued the state. The restaurant, which has locations around Florida, said the law regarding live entertainment threatened a weekly event featuring drag queens. Presnell issued an injunction barring the state from enforcing the law while the court case proceeds.

Restaurant owner John Paonessa told The Advocate the law was a threat to his business, even though events there were family-friendly. “We never had anything inappropriate,” he said.

The legal team that represented the Florida restaurant was the same one that won a ruling against a drag ban in Tennessee earlier this month.

“We are extremely pleased with this first win,” attorney Melissa Stewart said in a statement to The Advocate. “This law is unconstitutionally vague, overbroad, and clearly targeted at drag performers. The judge's order reflects that. This order will protect the First Amendment rights of not only our clients, but of the LGBTQIA community across Florida while we move forward with the next steps in this litigation.”

DeSantis this year has signed a slate of bills targeting LGBTQ+ people, and Florida state agencies have also issued rules that restrict the rights of this population. But some of these measures are not holding up in court.

U.S. District Judge Robert Hinkle Wednesday struck down a Florida Agency for Health Care Administration rule banning Medicaid coverage for gender-affirming care for both young people and adults. That came weeks after he issued an injunction allowing minors already in treatment to continue receiving puberty blockers.

The latest decision regarded a law that threatened the business licenses of any venue that allows minors into live shows with adult content. That was widely seen as an attack on drag shows, and the legislation had been filed by Florida Rep. Randy Fine, a Republican, in direct response to a drag queen story hour at a Pride event in his district.

While lawmakers behind the bill rejected accusations the bill targeted drag in particular, it’s already illegal in Florida to allow minors into strip shows and other live events with nudity and overtly sexual displays. The new law applied to live performances that include nudity, sexual conduct, sexual excitement, lewd conduct, or lewd exposure of prosthetic or imitation genitals or breasts.

Presnell said the law conflicts with statutes guaranteeing parental discretion on actions involving their children, reasoning that is ironic as DeSantis and Florida Republicans passed the slew of anti-LGBTQ+ laws by frequently citing “parents' rights.” The judge wrote that any argument of a compelling state interest didn’t apply.

“This concern rings hollow … when accompanied by the knowledge that Florida state law presently and independently ... permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian,” he wrote.

DeSantis Press Secretary Jeremy Redfern issued a statement saying the state will appeal.

"Of course it’s constitutional to prevent the sexualization of children by limiting access to adult live performances," he said. "We believe the judge’s opinion is dead wrong and look forward to prevailing on appeal."

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