Montana Drag Ban: Scope, Penalties, and Court Injunction

Montana’s drag ban, House Bill 359, is on the books but cannot be enforced. A federal judge blocked the law in 2023, and the Ninth Circuit Court of Appeals affirmed that block in March 2026 on First Amendment grounds. Performing in, hosting, or attending a drag event in Montana carries no legal consequences under HB 359 while the court’s injunction stands.

Can the Law Be Enforced Right Now

No. A federal temporary restraining order halted HB 359 on July 28, 2023, weeks after challengers filed suit. On October 13, 2023, U.S. District Judge Brian Morris converted that order into a full preliminary injunction, barring the Montana Attorney General and Superintendent of Public Instruction from enforcing any part of the statute.¹

Montana appealed. On March 13, 2026, a three-judge Ninth Circuit panel affirmed the injunction, holding that the challengers have standing and are likely to succeed on their First Amendment claims.¹

The case is not fully over. The district court has not yet issued a final ruling on the merits or a permanent injunction. Montana has not publicly announced whether it will seek rehearing by the full Ninth Circuit or review by the U.S. Supreme Court. For now, the preliminary injunction is the operative order, and the law cannot be used against anyone.

Where the Law Would Apply

HB 359 targets performances in spaces tied to public funding or public land. The statute reaches:

Public schools receiving state funding, during operating hours or at school-sanctioned extracurricular activities.
Any library receiving any form of state funding.
Public property, when the performance would occur in the presence of anyone under 18.
Locations owned by any entity that receives state funding.
Sexually oriented businesses, which cannot allow minors to enter during a sexually oriented performance.

Private venues on private property that take no government money are not covered.¹ The “any form of state funding” phrasing is broad enough to pull in nearly every public school and library in the state, since few operate without some state dollars.

What Performances the Law Covers

HB 359 creates two restricted categories: “drag story hours” and “sexually oriented performances.” A drag story hour is essentially any reading or similar event conducted by a drag performer in a school or library. The sexually-oriented-performance category sweeps in live shows the statute treats as sexual in nature.

The statute defines a “drag king” as a male or female performer who adopts a flamboyant or parodic male persona, with a parallel definition for “drag queen.”² The performer’s own sex does not limit the definition, so anyone adopting the described persona can fall within the statute.

The sexually-oriented-performance definition relies on theatrical elements like singing, dancing, and pantomime, but the regulatory trigger is the presence of what the law calls a “sexual element.” The Ninth Circuit flagged that the statute never clearly defines that term and omits the safeguards built into established obscenity law, including the requirement that material lack serious literary, artistic, political, or scientific value.¹ A performer or venue operator reading HB 359 cannot reliably tell what counts.

Penalties Written Into the Statute

None of these penalties can be imposed while the injunction holds. They matter because the text remains on the books and would spring back into force if the injunction were ever lifted.

State-funded entities or their employees who violate HB 359 face a $5,000 fine. Teachers and school personnel face a one-year suspension of their professional credentials for a first violation and permanent loss of their license for a second. Businesses that receive state funds and hold liquor licenses could lose those licenses for a single violation.

The law also creates a private right of action. A minor who attends a drag story hour or sexually oriented performance, or the minor’s parent or guardian, can sue anyone who knowingly promoted, conducted, or performed in the show. Successful plaintiffs can recover actual damages, $5,000 in statutory damages, and attorney fees and costs. The statute of limitations is ten years, an unusually long window that the Ninth Circuit specifically noted.¹

Why Federal Courts Blocked the Ban

The Ninth Circuit found that HB 359 regulates speech based on its content. Because the law singles out drag performers for the message their costumes and personas convey, it triggers strict scrutiny, the most demanding form of constitutional review. Under that standard, the state must prove the law is narrowly tailored to serve a compelling interest.¹

Even accepting that protecting children is a compelling interest, the court found HB 359 fails the tailoring requirement in several ways:

The law is overbroad, sweeping in performances widely treated as appropriate for children, including characters from G-rated movies.
It is underinclusive, targeting drag-specific performances while ignoring other potentially objectionable content. The court said this raises “serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”
It overrides parental authority rather than supporting it. Less restrictive alternatives exist, such as requiring schools and libraries to notify parents and offer an opt-out.
The state produced no evidence of a causal link between drag story hours and harm to children’s physical or psychological well-being.

The court also flagged vagueness. Without the obscenity-law guardrail that asks whether material, taken as a whole, lacks serious artistic or literary value, performers and venue operators cannot predict what the law reaches.¹

What Happens Next

The preliminary injunction remains in place. The district court still has to rule on the merits, which could convert the block into a permanent injunction. Montana retains the option of seeking rehearing by the full Ninth Circuit or petitioning the U.S. Supreme Court. Neither step had been announced as of mid-2026.

The Ninth Circuit’s reasoning did not identify a drafting flaw that a cleaner rewrite could fix. The court concluded that singling out drag performance for restriction based on its expressive content is itself the constitutional problem. A narrower law aimed at genuinely obscene material would likely survive scrutiny, but Montana’s existing obscenity statutes already cover that ground without any drag-specific language.

1
United States Court of Appeals for the Ninth Circuit. Imperial Sovereign Court of the State of Montana v. Knudsen
2
LegiScan. Montana Code HB359 – Prohibit Minors From Attending Drag Shows