Does Oklahoma law (the new 2025 'adult performance' statute or the existing obscenity laws) prohibit drag performances in front of minors or in public places?
Plain-English summary
Senator Julie Daniels asked the Attorney General four questions about whether drag performances are legal in Oklahoma after the Legislature's 2025 enactment of an "adult performance" restriction (21 O.S. § 1024.6, effective May 9, 2025).
The AG's bottom-line answer to all four questions: it depends on whether the drag performance contains "obscene material" as defined by 21 O.S. § 1024.1(B)(1) (which mirrors the U.S. Supreme Court's Miller v. California test).
Walking through each question:
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Does drag count as "obscene material" under the statute? Only if it meets the Miller test elements: it depicts "sexual conduct" specifically defined by Oklahoma law, the average person applying contemporary community standards finds the dominant theme appeals to prurient interest, the depiction is patently offensive, and the work taken as a whole lacks serious literary, artistic, political, or scientific value. Drag performances vary enormously; some meet these elements, most do not.
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Does drag count as "adult performance" under § 1024.6(A)(1)? Same answer. The statute defines "adult performance" as "any performance that contains obscene material." If the drag is not obscene, it is not an adult performance.
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Does drag in view of a minor or in public violate § 1024.6(B)(1)? Only if it contains obscene material.
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Is drag protected speech under the First Amendment? Yes, unless it contains obscene material. Miller v. California held that obscene material is not protected by the First Amendment, but non-obscene speech is.
The AG cited the recent Fifth Circuit decision in Spectrum WT v. Wendler (2025) holding that drag shows "communicated a message" of "support for the LGBT+ community," which is "enough to implicate the First Amendment." The AG also surveyed cases from Texas, Utah, and Tennessee striking down or upholding state and local drag laws based on whether they tracked the Miller test. Oklahoma's statute incorporates the Miller test, making it more defensible than laws that failed in other states.
The opinion stops short of pronouncing any specific drag performance illegal. That requires a fact-intensive review of "the specific nature of the performance, its content, and its purpose, as well as consideration of the performance in light of relevant community standards." That is a question for prosecutors, juries, and ultimately courts, not for an AG opinion.
What this means for you
If you are a drag performer in Oklahoma
Performing in drag is constitutionally protected speech. What matters is whether your performance includes obscene material as defined by Oklahoma law. To stay clearly outside the statute:
- Do not include any of the enumerated "sexual conduct" acts in 21 O.S. § 1024.1(B)(3) when minors may be present or in public places: sexual intercourse, oral or anal sodomy, masturbation, sadomasochistic abuse, excretion in a sexual context, or exhibiting genitals or pubic areas. Effective November 1, 2025, the renamed "sexually explicit conduct" definition expanded to include "sexual activity with an animal" and "exhibiting genitalia, breast, or pubic area for the purpose of the sexual stimulation of the viewer."
- Performances that are family-friendly, comedic, theatrical, or political fall outside the statute. Story-time, lip-sync entertainment, and stage shows that do not include sexual conduct are not obscene.
- For 21+ private venues, the statute does not apply (the prohibition is "in front of minors or in a public place"). Adult-only venues retain broader latitude.
If you organize events that include drag performers
Two practical steps:
- Audit the content. If your event is in a public place or open to minors, structure performances to avoid the "sexual conduct" categories listed above. The line is sexual conduct, not gender expression.
- Document age controls. If your event is age-restricted (21+), document the age verification at the door. The statute applies to performances in front of minors or in a public place; verified-adult-only events are outside its scope.
If you own or operate a venue
You may have liability exposure if a performance at your venue meets the obscenity test and is performed in front of minors or in a public place. Standard venue diligence:
- Know the content of the performance before booking.
- Check whether the venue is "public" under Oklahoma law (a fact-specific question; private clubs and members-only venues may not qualify).
- Coordinate with performers on content guidelines.
The opinion does not break new ground on what counts as a "public place"; the existing Oklahoma definition of that term applies.
If you are a city attorney or local prosecutor
The opinion clarifies that drag performance per se is not the legal hook; obscenity is. To prosecute under § 1024.6, you need evidence that:
- A specific performance contained one of the enumerated acts of "sexual conduct" (or, post-November 1, 2025, "sexually explicit conduct").
- The performance, taken as a whole, appeals to prurient interest.
- It is patently offensive by contemporary community standards.
- It lacks serious literary, artistic, political, or scientific value.
- It was performed in front of minors or in a public place.
- The defendant acted "willfully" (per OUJI-CR 4-135).
That is a substantial prosecutorial burden. It also exposes the prosecution to First Amendment challenges if the performance does not actually contain "sexual conduct" as defined.
The Texas and Utah experience (Woodlands Pride, Drag Stars v. St. George) shows that drag-targeted enforcement that does not track the Miller test fails First Amendment scrutiny. Oklahoma's statute mirrors Miller, but enforcement actions still need to satisfy each Miller element on the facts.
If you are a parent, teacher, or community member
The opinion clarifies what is and is not legal. Drag is legal in Oklahoma. Drag with sexual conduct in front of minors or in public is not. If you have concerns about a specific event in your community, the recourse is to communicate with the event organizer or law enforcement; not every drag event involves obscene material.
If you are concerned that a public school, library, or government venue is hosting an event that you believe contains obscene material, the AG's framework gives you the relevant test (Miller test elements). Vague allegations that "drag is obscene" will not prevail; specific allegations about specific content might.
If you are an LGBTQ+ advocate or attorney
The opinion is more cautious than some advocates may have feared. It does not declare drag categorically illegal. It explicitly recognizes drag as First Amendment-protected speech (citing the Fifth Circuit's Spectrum WT reversal). It applies the Miller test, which is a high bar.
Continue documenting any selective or pretextual enforcement that targets drag performances without obscenity findings. The Texas and Utah cases provide successful templates.
If you are an Oklahoma legislator
The 2025 Adult Performance Act tracks Miller, which the AG opinion supports. If members want a tighter or looser definition, amendment options:
- Tighter (more enforcement): add categories to "sexual conduct," lower the prurient-interest threshold (note: this risks First Amendment invalidation per Woodlands Pride).
- Looser: clarify exemptions for theatrical, educational, or political contexts; require a stricter mens rea.
Statute revision in this area faces constant federal-court scrutiny. Tracking Miller language closely is the most defensible drafting approach.
Common questions
Q: Is drag illegal in Oklahoma?
A: No. Drag performance per se is constitutionally protected expression. Drag performances that contain "obscene material" as defined by 21 O.S. § 1024.1(B)(1) and are performed in front of minors or in a public place violate § 1024.6.
Q: What is the Miller test?
A: Three elements from Miller v. California, 413 U.S. 15 (1973): (1) the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Q: What counts as "sexual conduct" under Oklahoma law?
A: 21 O.S. § 1024.1(B)(3) lists sexual intercourse, oral or anal sodomy, masturbation, sadomasochistic abuse, excretion in a sexual context, and exhibiting genitals or pubic areas. Effective November 1, 2025, the term changes to "sexually explicit conduct" and adds "sexual activity with an animal" and "exhibiting genitalia, breast, or pubic area for the purpose of the sexual stimulation of the viewer."
Q: What happened to the "obscene material" definition in 2025?
A: Senate Bill 53 (2025 Okla. Sess. Laws ch. 29) amended § 1024.1(B)(1) effective November 1, 2025, replacing "obscene material" with "obscene." The definitions are virtually identical, so the substantive analysis does not change.
Q: Are private adult-only drag shows legal?
A: The "adult performance" prohibition in § 1024.6 applies "in view of a minor or in a public place." Verified 21+ private events are outside the prohibition. The general obscenity statute § 1021 still applies, but it has a higher mens rea threshold and is rarely prosecuted against consenting-adult private performances.
Q: What did the Fifth Circuit just decide about drag?
A: Spectrum WT v. Wendler (5th Cir. Aug. 18, 2025) reversed a district court ruling that drag shows are not protected speech. The Fifth Circuit held that drag performances "communicated a message" of "support for the LGBT+ community," which is "enough to implicate the First Amendment." This is consistent with the Oklahoma AG opinion's view.
Q: What about state laws that did NOT track Miller and got struck down?
A: Texas's "sexually oriented performances" ban was struck down in Woodlands Pride, Inc. v. Paxton (S.D. Tex. 2023) for failing to include all Miller test elements. A Utah city's denial of a drag show permit was struck down in S. Utah Drag Stars v. City of St. George (D. Utah 2023) because there was "no evidence" the show would be "anywhere close to satisfying even one prong of the Miller standard." Oklahoma's statute incorporates Miller, making it more defensible.
Q: What about Tennessee's law that was upheld?
A: Friends of George's, Inc. v. Mulroy (6th Cir. 2024), cert. denied 2025, upheld Tennessee's Adult Entertainment Act because it incorporated the Miller test and adapted it for minors. Oklahoma's law is similar in structure.
Q: Does the opinion say any specific drag performance is illegal?
A: No. The AG explicitly declines to make that determination. "Whether a specific drag performance contains obscene material involves fact questions that are outside the scope of an Attorney General Opinion."
Q: What is the penalty for violating § 1024.6?
A: It is a misdemeanor. The general obscenity statute § 1021 carries felony penalties for distribution of obscene material.
Background and statutory framework
Oklahoma has criminalized obscenity distribution since territorial days (Okla. Rev. Laws § 2463 (1910)). The current obscenity offense at § 1021 is a felony. In 2025, the Legislature added § 1024.6 ("Adult Performance Act"), creating a misdemeanor for engaging in an "adult performance" involving obscene material in front of minors or in a public place.
The constitutional framework for obscenity comes from Roth v. United States (1957) (obscenity is not protected by the First Amendment) and Miller v. California (1973) (three-part definition of obscenity). All states must apply the Miller test to obscenity statutes; obscene material is unprotected speech.
Oklahoma's § 1024.1(B)(1) tracks Miller almost verbatim. The "sexual conduct" categories in § 1024.1(B)(3) define what kinds of conduct can support an obscenity finding. The 2025 SB 53 amendments expanded but did not fundamentally change the framework.
The opinion's key analytical move is to make the obscenity threshold dispositive of all four questions. Whatever language Oklahoma uses to describe a regulated category ("obscene material," "adult performance"), the constitutional and statutory test is Miller. If a performance is not Miller-obscene, it is constitutionally protected, regardless of whether the performer is in drag, costume, or street clothes.
The opinion does not address the harder questions: how broad is "in a public place," what counts as "willfully," when does art "as a whole" lack serious literary value. Those questions are jury-fact determinations in specific prosecutions.
Citations and references
Statutes:
- 21 O.S. § 1021 (Obscenity offense)
- 21 O.S. § 1024.1 (Obscenity definitions)
- 21 O.S. § 1024.6 (Adult Performance Act)
Cases:
- Miller v. California, 413 U.S. 15 (1973)
- Roth v. United States, 354 U.S. 476 (1957)
- Spectrum WT v. Wendler, 2025 WL 2388306 (5th Cir. Aug. 18, 2025)
- Friends of George's, Inc. v. Mulroy, 108 F.4th 431 (6th Cir. 2024)
- Woodlands Pride, Inc. v. Paxton, 694 F. Supp. 3d 820 (S.D. Tex. 2023)
- S. Utah Drag Stars v. City of St. George, 677 F. Supp. 3d 1252 (D. Utah 2023)
Source
- Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2025/ag-opinion-2025-13.html
- Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2025/A.G.%20Opinion%202025-13%202025%20OK%20AG%2013.pdf
Original opinion text
GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2025-13
The Honorable Julie Daniels
Oklahoma Senate, District 29
2300 N Lincoln Blvd., Rm. 421
Oklahoma City, OK 73105
August 29, 2025
Dear Floor Leader Daniels:
This office has received your request for an Attorney General Opinion in which you ask the following questions:
- Is a performance by an individual dressed in drag included in the definitions of "obscene material" in title 21, section 1024.1?
- Is a performance by an individual dressed in drag included in the definitions of "adult performance" in title 21, section 1024.6(A)(1) (Supp.2025)?
- Does a performance by an individual dressed in drag, in view of a minor in a public place, violate the provisions of title 21, section 1024.6(B)(1) (Supp.2025)?
- Is a performance by an individual dressed in drag protected speech under the First Amendment? If so, under what circumstances can said speech be regulated by the state or other political subdivisions?
I. SUMMARY
The answer to all four questions depends upon whether the drag performance contains "obscene material" as defined by title 21, section 1024.1(B)(1). The definition of "adult performance" in title 21, section 1024.6(A)(1) (Supp.2025) requires the performance to contain "obscene material." For a performance to be prohibited by section 1024.6(B)(1), it likewise must also contain "obscene material." Finally, the performance is not protected by the First Amendment to the extent it contains "obscene material." Miller v. California, 413 U.S. 15, 36 (1973). As a result, a drag performance violates Oklahoma law only if it contains "obscene material."
Whether a performance contains obscene material requires an analysis of the specific nature of the performance, its content, and its purpose, as well as consideration of the performance in light of relevant community standards. It is likely that some drag performances, when analyzed under this framework, contain obscene material. But whether a specific drag performance contains obscene material involves fact questions that are outside the scope of an Attorney General Opinion.
II. BACKGROUND
Since its territorial days, Oklahoma has criminalized distribution of obscene material. Currently, a person who "[w]rites, composes, stereotypes, prints, photographs, designs, copies, draws, engraves, paints, molds, cuts, or otherwise prepares, publishes, sells, distributes, keeps for sale, knowingly downloads on a computer, or exhibits any obscene material or child sexual abuse material" is guilty of a felony in Oklahoma. 21 O.S.Supp.2024, § 1021(A)(3). Effective May 9, 2025, the Legislature expanded the state's criminal obscenity laws to make it a misdemeanor to engage in an adult performance involving obscene material in front of minors or in a public place. 21 O.S.Supp.2025, § 1024.6.
Over the years, obscenity laws like Oklahoma's have been challenged across the country. In 1957, the Supreme Court ruled that obscenity is not protected by the First Amendment. In 1973, the Supreme Court decided Miller v. California, reaffirming its holding in Roth and adopting the test for determining obscenity that is still in use today. Under the Miller test, a work is obscene if: (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest," (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law," and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Oklahoma's definition of obscene material found in section 1024.1(B)(1) mirrors the Miller test. Accordingly, this opinion addresses the Miller test as adopted in section 1024.1(B)(1).
III. DISCUSSION
A. The Answer to All Four Questions Depends Upon Whether the Drag Performance Contains Obscene Material.
The first question asks whether a performance by an individual dressed in drag is included in the definition of "obscene material" in section 1024.1(B)(1). Thus, its answer depends upon whether the drag performance contains obscene material.
The second question concerns the definition of "adult performance" in section 1024.6(A)(1). An "adult performance" is defined as "any performance that contains obscene material, if done in view of a minor or in a public place" (emphasis added). Therefore, it also depends upon whether the drag performance contains obscene material.
The third question concerns whether a performance by an individual dressed in drag violates section 1024.6(B)(1). And a violation of this subsection requires the performance "contain[] obscene material." Therefore, it likewise depends on whether the drag performance contains obscene material.
The final question concerns whether a drag performance is protected speech under the First Amendment. Performances that contain obscene material as outlined in the Miller test are not protected by the First Amendment. Therefore, resolution of the final question also depends on whether a drag performance contains obscene material.
B. Some Drag Performances Likely Contain Obscene Material, but Whether Any Specific Drag Performance Contains Obscene Material Involves Fact Questions That Are Outside the Scope of an Attorney General Opinion.
The letter accompanying this opinion request does not contain a definition of a performance by an individual dressed in drag. In this context, the Merriam-Webster Dictionary defines drag as "entertainment in which performers caricature or challenge gender stereotypes (as by dressing in clothing that is stereotypical of another gender, by using exaggeratedly gendered mannerisms, or by combining elements of stereotypically male and female dress) and often wear elaborate or outrageous costumes." But the definition of a performance by an individual dressed in drag is not ultimately relevant because the referenced Oklahoma statute criminalizes "engag[ing] in an adult performance involving obscene material done in front of minors or in a public place" (emphasis added). Thus, the dispositive question is whether the performance contains obscene material, regardless of whether drag is involved.
Under Oklahoma law, "obscene material" includes any representation, performance, depiction, or description of sexual conduct that meets three criteria: (a) it is patently offensive as judged by the average person applying contemporary community standards; (b) it appeals to prurient interest in sex as its dominant theme; and (c) it lacks serious literary, artistic, educational, political, or scientific value when taken as a whole.
Importantly, the definition of "obscene material" as established by the Miller test and adopted in Oklahoma first requires the performance to contain "sexual conduct." Oklahoma's statutory definition of "sexual conduct" comprises the following acts: sexual intercourse, oral or anal sodomy, masturbation, sadomasochistic abuse, excretion in a sexual context, and exhibiting genitals or pubic areas. Thus, for a drag performance to meet the definition of obscene material, it must first contain one of these enumerated acts of sexual conduct. If it contains such an act, then a drag performance must be reviewed to determine whether it predominantly appeals to a prurient interest in sex, is patently offensive according to contemporary community standards, and lacks serious literary, artistic, educational, political, or scientific value.
It is likely that some drag performances contain sexual conduct and meet the other elements of the Miller test as adopted in section 1024.1(B)(1). But whether a specific drag performance meets these elements ultimately involves fact questions that are outside the scope of an Attorney General Opinion.
It is, therefore, the official Opinion of the Attorney General that:
A drag performance done in view of minors or in a public place violates title 21, section 1024.6 (Supp.2025) of the Oklahoma Statutes and is not protected by the First Amendment if it contains obscene material as defined by title 21, section 1024.1(B)(1). A drag performance contains obscene material if it contains an enumerated act of sexual conduct defined in title 21, section 1024.1(B)(3) and meets the other elements of the Miller test as adopted by Oklahoma in section 1024.1(B)(1). But whether any specific drag performance contains obscene material is outside the scope of an Attorney General Opinion.
GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA
GARRY M. GASKINS, II
SOLICITOR GENERAL