Committee advances bill banning ‘obscene live conduct’ at universities

Rep. Chris Karr, R-Sioux Falls, testifies before the House State Affairs Committee on Feb. 12, 2024. (Joshua Haiar/South Dakota Searchlight)

PIERRE — A bill that would ban “obscene live conduct” at state universities raised concerns Monday among opponents who view it as a veiled attempt to target drag shows.

“Who decides what is considered obscene?” said Samantha Chapman, of the American Civil Liberties Union of South Dakota, in an emailed statement. “It’s impossible to define obscene in a way that isn’t hopelessly vague and subjective, and government officials cannot impose their personal moral values on others.”

The bill’s prime sponsor, Rep. Chris Karr, R-Sioux Falls, said his intent is not to ban drag shows outright but to prohibit performances deemed obscene.

“I never mentioned drag shows,” Karr said. “I never mentioned drag.”

The bill , which does not include specific references to drag shows, passed the House State Affairs Committee in an 11-2 vote . It now moves to the full House of Representatives.

A drag show features performers, known as drag queens or drag kings, who dress in clothing and makeup traditionally associated with the opposite gender to entertain an audience. The performances may include singing, dancing, comedy and other forms of entertainment.

In response to public concerns surrounding a student group’s drag show in 2022 at South Dakota State University in Brookings, the state Board of Regents has implemented a “minors on campus” policy . That policy also does not mention drag shows but was developed in reaction to the drag show at SDSU, which a student group advertised as “kid friendly.” The policy says non-student minors need a valid purpose or express permission to be in university facilities, and that any programming attended by them should not include activities of a sexual nature, obscene live conduct or anything deemed harmful to minors.

Last year, Karr cosponsored a bill that would have banned “lewd or lascivious” content at state institutions and public schools. That bill failed due to constitutional concerns about potentially banning an artistic expression.

This year’s bill would ban “obscene live conduct.” Under a separate, existing state law , that term is defined as “any physical human body activity” where the dominant theme “appeals to a prurient interest,” where the conduct is “patently offensive because if affronts contemporary community standards relating to the description or representation of sexual matters,” and the conduct is “without serious literary, artistic, political or scientific value.”

Michael Garofalo, president of the South Dakota Student Federation, testified against the bill. He said the group opposes it and students are ready to “c lose the chapter here and move past this discussion,” referring to the SDSU drag show controversy.

That view is shared by Yvonne Taylor with the South Dakota Advocacy Network for Women.

“It’s time to move on,” Taylor said. “This isn’t a problem.”

The bill also ensures legal representation by the attorney general at no charge for the state Board of Regents, its institutions, or employees should lawsuits or complaints arise. The state would also cover any related legal expenses, including attorney fees and costs.

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