What Does “Regardless of Whether It’s for Consideration” Mean in Ohio HB 249, And Could Everyday Behavior Be a “Performance”?

One of the most-asked questions about Ohio House Bill 249, the Indecent Exposure Modernization Act, is not about drag shows. It is not about penalties. It is about seven words buried in the bill’s definition of “adult cabaret performance” — a phrase that legal critics say could reach far beyond what the bill’s sponsors describe as its purpose.

The phrase is: “regardless of whether or not the performance is for consideration.”

And the question readers keep asking is a fair one: if a performance does not require payment, does not require a stage, and does not require intent — then what exactly makes something a “performance” in the first place? Could ordinary behavior, in the wrong context, be labeled one?

This article answers that question directly, drawing from the bill’s own text, the legal tradition behind this type of language, parallel court rulings from other states, and what legal critics say enforcement could look like in practice.

First, What Does the Full Definition Actually Say?

Before analyzing the phrase, it helps to read the full definition it appears in. Under HB 249, an “adult cabaret performance” is defined as:

A performance in a location other than an adult cabaret where minors may be present, that is harmful to juveniles or obscene, regardless of whether or not the performance is for consideration, and that features any of the following: topless dancers; go-go dancers; exotic dancers; strippers; performers or entertainers who exhibit a gender identity that is different from the performer’s or entertainer’s biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers; or other similar performers or entertainers who provide entertainment that appeals to a prurient interest.

That definition has several moving parts, and they all matter. The phrase “regardless of whether or not the performance is for consideration” is one clause within it — but it is not the only gate the definition requires you to pass through.

What Does “For Consideration” Mean in Legal Language?

In contract law and statutory drafting, “consideration” has a specific meaning. It refers to something of value exchanged between parties — money, a promise, goods, a benefit. When a law says an act applies “regardless of whether for consideration,” it means the law covers both paid and unpaid versions of the activity.

This is not unusual or new. Laws covering prostitution, child labor, and commercial speech have long used similar language to prevent people from avoiding liability simply by declining payment. The legislature’s intent, when using this phrase, is typically to close what lawyers call a “pay-to-trigger” loophole — a situation where someone could argue: “I wasn’t paid, so I wasn’t performing commercially, so the law doesn’t apply to me.”

The Ohio Legislative Service Commission’s official analysis of HB 249 confirms this reading, showing the phrase appears directly within the adult cabaret performance definition and applies to the full list of performers described in that section.

So on its face, the phrase means this: it does not matter whether a drag performer charged admission, performed for free at a Pride festival, or appeared as an unpaid volunteer at a community event. If the other elements of the definition are met, payment is not a shield.

That part is relatively straightforward. The harder question is what the rest of the definition requires — and whether those requirements actually limit the phrase’s reach as much as supporters claim.

The Four Things That Must ALL Be True

This is where the legal analysis gets important. The “regardless of consideration” clause does not operate alone. For something to qualify as an unlawful adult cabaret performance under HB 249, all of the following conditions must be satisfied simultaneously:

1. It must be a “performance.” The activity must fit within a reasonable reading of that word — some observable act directed at or viewable by others.

2. It must occur in a location other than an adult cabaret. Adult cabarets are defined under existing Ohio law and require specific licensing and age restrictions. A nightclub or bar with appropriate permits qualifies.

3. Minors must be able to be present. The bill says “where minors may be present” — meaning a minor does not have to actually be there, only that the location is one where minors are not excluded.

4. The performance must be harmful to juveniles or obscene. This is the most significant limiting requirement, and it is defined by reference to existing Ohio obscenity law, which in turn tracks the U.S. Supreme Court’s three-part Miller test.

Supporters of the bill point to condition four as the true limiting principle. The Center for Christian Virtue, which supports HB 249, argues the bill prohibits only obscene adult cabaret performances outside of designated adult venues and does not change the legal definition of obscenity.

That argument is legally accurate as far as it goes. But critics say the problem is not with the definition of obscenity — it is with who applies it and when.

The Real Problem: Who Decides What Is a “Performance”?

The bill never defines the word “performance.” That absence is not incidental — it is where the legal risk concentrates.

A performance in common understanding involves intent, an audience, and a presentational quality. A street musician is performing. A community theater actor is performing. A drag queen on a Pride float is performing. These are easy cases.

But the bill’s definition does not require that a performance be intentional, ticketed, or announced. It does not require a stage. It does not require that the person consider themselves a performer. The ACLU of Ohio has argued that the bill’s language is left vague on purpose, so that the line between what is “masculine” and “feminine” can be drawn by an outside observer rather than the individual — effectively shifting power from the person expressing themselves to whoever is watching.

This is the basis for the scenario your readers are raising: could a transgender woman walking through a park — dressed in feminine clothing, perhaps attracting attention — be considered to be “performing” a gender identity different from her biological sex?

The honest legal answer is: under a strict reading of all four conditions, probably not — because condition four would still require the conduct to be obscene or harmful to juveniles under the Miller test, and simply walking while trans does not meet that standard. But the concern is not about what courts would ultimately decide. It is about what happens before a court ever gets involved.

The “Chilling Effect” Concern: Why Vagueness Matters Even Without Arrests

The ACLU of Ohio raised this point directly in its official opponent testimony: the interpretations and applications of vague terms are left entirely to a police officer who cites or arrests the suspect, and the prosecutor who charges them. The uncertainty created by undefined terms causes some people not to perform at all — even when no citation, arrest, prosecution, or conviction ever occurs. In First Amendment law, this is called a “chilling effect.”

That is the practical mechanism by which the “regardless of consideration” language becomes dangerous even if its formal legal scope is limited. The phrase, combined with the undefined word “performance,” means that the determination of what counts as a performance is made on the street — not in a courtroom.

A police officer does not need to prove something is legally obscene to begin an enforcement interaction. They only need to believe, or claim to believe, that what they observed might meet the definition. The chilling effect operates at the moment of that initial judgment, not at the moment of conviction.

What the Tennessee Precedent Tells Us

Ohio is not operating in a legal vacuum. Tennessee passed a nearly identical law in 2023, and its journey through the courts provides a preview of what HB 249 may face.

A federal judge initially struck down Tennessee’s law, finding it was both “unconstitutionally vague and substantially overbroad” and that it encouraged “discriminatory enforcement.” The judge, a Trump appointee, emphasized the distinction between material that is “obscene” in everyday speech and material that is legally obscene under First Amendment doctrine. He used the example of a female performer wearing an Elvis Presley costume — someone who could be labeled a “male impersonator” and therefore face prosecution, despite performing entirely mainstream entertainment.

The Elvis example is not hypothetical under HB 249 either. The bill’s definition includes performers who “exhibit a gender identity that is different from the performer’s or entertainer’s biological sex using clothing.” A woman in a suit. A man in a dress for a comedy sketch. A Halloween costume worn on a public street where a child might walk by.

The Sixth Circuit Court of Appeals later reversed the lower court ruling on procedural grounds — specifically finding that the plaintiffs lacked legal standing to sue — and did not rule on the constitutional merits. This means the First Amendment questions raised by the Tennessee law remain unresolved, and a separate lawsuit in East Tennessee is ongoing.

The Supreme Court declined to hear the Tennessee case in early 2025, leaving in place the appeals court ruling on standing, but not settling the constitutional questions.

For Ohio, this means: if HB 249 becomes law, constitutional litigation is widely anticipated. Courts in the Sixth Circuit — which covers Ohio — will eventually be asked to rule on the same vagueness and overbreadth questions that Tennessee’s law raised.

So Could Everyday Behavior Actually Be Swept In?

Let’s answer the specific question your readers are asking directly and honestly.

The formal legal argument against that outcome: The bill requires that the activity be harmful to juveniles or obscene under the Miller test. Walking down the street in expressive clothing, regardless of how a police officer perceives it, does not meet the legal definition of obscenity. Courts have repeatedly held that sexually explicit but non-obscene expression is protected under the First Amendment, and the bar for meeting the Miller test is high.

The practical concern that critics raise: The word “performance” is undefined. The phrase “regardless of consideration” removes the only clear objective marker — payment — that might have helped distinguish intentional commercial performance from everyday expressive behavior. The ACLU has pointed out that who decides what is “patently offensive,” what meets “prevailing standards,” and what “lacks serious literary, artistic, political, and scientific value” is, in practice, the police officer making the initial judgment call.

The real-world risk identified by the Tennessee ruling: The judge in that case wrote that the Tennessee law’s vague language “encourages discriminatory enforcement” — meaning it creates conditions where enforcement can be selectively targeted based on who the officer dislikes rather than what the law actually requires.

The bottom line: A person going about their daily life — walking, shopping, attending a community event — is not a “performance” in any reasonable reading of that word, and would almost certainly not be prosecuted or convicted under HB 249 for doing so. But the absence of a clear definition of “performance,” combined with the removal of the payment requirement through the “regardless of consideration” clause, creates a legal environment where the initial enforcement decision is highly discretionary. That discretion, in practice, falls on whoever is watching.

What the Bill’s Supporters Say

It would be unfair to analyze this question without presenting the proponent argument fully.

Sponsors of the bill have stated that the goal is to protect children and families from sexualized performances in public spaces while preserving the free speech rights of performers. Rep. Josh Williams argued that Ohio has clear gaps in its obscenity laws, and that the same type of performances children cannot watch online they should not be able to watch in person.

Supporters also argue that the obscenity and harmful-to-juveniles standards provide a meaningful floor that prevents the kind of overreach critics describe. The Center for Christian Virtue has specifically stated that the bill does not ban adult entertainment and does not change the legal definition of obscenity — it simply applies an existing standard to public performances.

These are reasonable arguments. The disagreement is not about whether obscenity can be regulated — it can be, consistently with the First Amendment. The disagreement is about whether the bill’s definitions are precise enough to ensure that only obscene conduct is regulated, and whether vague language will produce selective enforcement regardless of what the statute technically permits.

What HB 249 Still Needs to Do to Become Law

As of April 4, 2026, HB 249 has passed the Ohio House by a vote of 63–32 and now sits in the Ohio Senate. There is no fixed timeline for Senate action. Some bills move through in weeks; others sit in committee for months or are never taken up for a vote. The 136th General Assembly session runs through 2026. If the Senate amends the bill, a conference committee must reconcile the two versions before it reaches the Governor for signature.

Until that process is complete, HB 249 is not law. Existing Ohio law governs.

Key Takeaways

The “regardless of whether for consideration” phrase in HB 249 does one specific thing: it removes payment as a threshold requirement for the law to apply. It does not, on its own, convert everyday behavior into a criminal performance. The bill still requires that conduct be obscene or harmful to juveniles under existing Ohio law.

The legitimate concern is not that the phrase alone criminalizes walking while trans or dressing expressively. The concern is that the bill leaves “performance” undefined, removes the clearest objective marker that distinguished commercial performance from everyday expression, and places the initial enforcement judgment in the hands of individual officers without a clear standard to guide that judgment.

That is a real legal concern, recognized by courts that have reviewed nearly identical laws in other states. Whether it is ultimately fatal to HB 249, if it becomes law, will be decided by federal courts in the Sixth Circuit.

If you are a performer, venue owner, or individual whose everyday expression could intersect with this bill’s definitions, the appropriate step is to consult a licensed Ohio attorney before the law takes effect — not after.

By AllAboutLawyer.com | Updated April 4, 2026

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• Ohio HB 249 Penalties: When Does It Become a Felony?

Legal Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Laws may change, and legal outcomes depend on specific facts and circumstances. If you have questions about how Ohio HB 249 or any other law may affect you, consult a licensed attorney in your jurisdiction.