Who Decides If Something Is a “Performance” Under Ohio HB 249? The Answer Should Worry Everyone

Ohio House Bill 249 creates a new criminal offense — the unlawful adult cabaret performance — that carries penalties ranging from 180 days in jail to 18 months in prison. The bill defines what types of performers are covered. It defines what locations are covered. It defines what “biological sex” means and what “adult cabaret” means.

It does not define the word “performance.”

That single omission is the legal fault line running through the entire bill. Because everything in HB 249’s adult cabaret offense depends on an activity qualifying as a performance first — and because that word appears nowhere in the bill’s definition section — the question of who decides whether something is a performance becomes the most consequential enforcement question the bill raises.

The answer to that question runs through five separate decision-makers, in sequence. Understanding who each one is, what standard guides their judgment, and where the undefined word “performance” gives them discretion is the only way to honestly assess what this bill would do in practice if it becomes law.

As of April 4, 2026, HB 249 has passed the Ohio House by a 63–32 vote and now sits in the Ohio Senate. It has not been signed into law.

Why the Missing Definition Matters So Much

Most people reading about HB 249 assume the word “performance” is self-explanatory. A drag show is a performance. A concert is a performance. A theater production is a performance. That is true. The easy cases are easy.

The problem is that the law is not written for easy cases. Laws are written for disputed cases — the situations where reasonable people disagree about whether the conduct falls within the statute. And in the disputed cases, the absence of a definition does not produce a neutral outcome. It produces an outcome shaped entirely by the person making the initial call.

Under American constitutional law, a statute may be void for vagueness and unenforceable if it is too vague for the average citizen to understand what acts or duties are required or restricted. A statute is also void for vagueness if a legislature’s delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions.

The word “performance” in HB 249 is not a defined term. It is not cross-referenced to any other section of the Ohio Revised Code. It carries no statutory meaning under the bill as written. That means its application in any given situation rests on the judgment of whoever is applying it — and that judgment operates differently at each stage of the enforcement chain.

Stage One: The Police Officer

The enforcement chain begins on the street, at a festival, outside a community event, or in a park. It begins with a police officer who observes conduct they believe might qualify as an unlawful adult cabaret performance.

Before any prosecutor, judge, or jury ever considers the question, that officer makes an initial determination: is what I am seeing a performance?

No statute guides that determination. No regulation defines the word. The officer applies their own understanding of what a performance is, filtered through their personal perceptions of gender expression, clothing, and behavior. If they conclude that what they are seeing qualifies, they can initiate an enforcement interaction — a stop, a citation, or an arrest.

The ACLU of Ohio made this point directly in its official opponent testimony on HB 249: the interpretations and applications of vague terms are left entirely to the police officer who cites or arrests the suspect and the prosecutor who charges them.

This is not a hypothetical concern. It is the established mechanism of how vague laws operate in practice. The Supreme Court has recognized that a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Consider the practical scenarios. A transgender woman walking through a Pride festival in feminine dress, makeup, and heels — is she performing? A male cosplay enthusiast at a Comic-Con event dressed as a female character — is he performing? A gender-nonconforming person reading to children at a library event in expressive clothing — are they performing?

Under HB 249 as written, none of these questions has a statutory answer. Each one is answered first by the officer on the scene.

TransOhio Executive Director Dara Adkison described this dynamic precisely: the bill makes a statute that law enforcement professionals can enforce based on personal ideas about what is and isn’t appropriate gender representation, and what is and isn’t a performance.

Stage Two: The Prosecutor

If an officer makes an arrest or issues a citation, the case moves to a prosecutor — either a city prosecutor for misdemeanor charges or a county prosecutor for felony-level offenses.

The prosecutor’s job is to decide whether to file charges, what charges to file, and whether the facts support each element of the offense. On the question of whether conduct constitutes a “performance,” the prosecutor exercises significant independent discretion.

A prosecutor in a conservative rural county and a prosecutor in a major urban county may reach entirely different conclusions about whether the same conduct constitutes a performance under HB 249. Neither would be applying a statutory definition, because none exists. Both would be applying their own judgment, constrained only by the general principle that charges must be supported by probable cause.

The ACLU’s opponent testimony raised exactly this point: the determination of what meets the legal standards in the bill is not a matter of careful deliberation about prevailing community standards. It is the decision of the charging prosecutor.

This prosecutorial discretion is not a bug unique to HB 249. It is a feature of every criminal law. But its significance is amplified when the underlying term is undefined — because an undefined term gives the prosecutor more room to characterize conduct as criminal than a precisely defined term would.

Stage Three: The Jury

If a case proceeds to trial — which most misdemeanor cases do not, because defendants frequently accept plea agreements to avoid the uncertainty of trial — the jury becomes the next decision-maker on what qualifies as a performance.

Ohio juries are instructed on the law as written. They are not given a statutory definition of “performance” because none exists. They apply their common understanding of the word, which means twelve individual people bring twelve different intuitions about what makes something a performance into the deliberation room.

The ACLU observed that if one were to privately poll a room of people about what various undefined terms in HB 249 mean and how they should be applied, there would naturally be a wide range of opinions — and therein lies the fundamental problem with vague laws. They can be unfairly and unnecessarily applied to all kinds of art, media, performances, and expression.

A jury that believes expressive walking constitutes performance will reach a different verdict than a jury that requires a stage. A jury that believes dressing in gender-nonconforming clothing at a community event is performative will reach a different verdict than a jury that requires an intentional audience relationship. Without a statutory definition, both juries are applying the law correctly — and producing opposite outcomes.

Stage Four: The Trial Judge

A trial judge in a bench trial — where the judge decides both facts and law, without a jury — has even more concentrated discretion on the performance question than a jury does. In Ohio, many misdemeanor cases are resolved in bench trials, meaning a single judge’s understanding of “performance” determines the outcome.

Beyond fact-finding, judges also make pre-trial legal rulings that shape what evidence is admissible, how jury instructions are written, and whether the charges are legally sufficient on their face. A judge who reads “performance” broadly will deny a motion to dismiss. A judge who reads it narrowly may grant one.

The constitutional problem with leaving this to judicial discretion on a case-by-case basis is precisely what the void-for-vagueness doctrine is designed to prevent. Under the void-for-vagueness doctrine, due process requires that criminal laws define prohibitions with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The more important aspect of vagueness doctrine is not actual notice, but the requirement that a legislature establish minimal guidelines to govern law enforcement.

HB 249 establishes no minimal guidelines for determining when conduct crosses from expressive behavior into a regulated performance. It leaves that determination to each officer, each prosecutor, and each judge, without a common standard to produce consistent results across Ohio’s eighty-eight counties.

Stage Five: The Appellate Courts — And the Constitutional Question

Eventually, if HB 249 becomes law, the question of what “performance” means will reach the Ohio Court of Appeals and potentially the Ohio Supreme Court. Appellate courts can give the undefined term a settled legal meaning through case-by-case interpretation — a process that takes years and produces results only after real people have faced real charges under an unresolved standard.

But appellate courts can also do something more immediate: they can find that the undefined term makes the statute unconstitutionally vague on its face, requiring the Ohio legislature to rewrite the provision before it can be enforced.

The Tennessee federal judge who struck down that state’s nearly identical law described it as a statute that “reeks with constitutional maladies of vagueness,” and concluded that the legislature had “carelessly, if not intentionally” enacted it “for the inappropriate purpose of chilling constitutionally free speech.”

The Tennessee law used similarly undefined terms. The word “drag” never appeared in the Tennessee statute’s text, yet the judge concluded that drag was the one common thread in all three specific examples of conduct considered harmful to minors in the legislative transcript. He used that observation to conclude the law was designed to chill protected speech rather than regulate legally obscene conduct.

The same analytical move is available to any court reviewing HB 249. The bill’s sponsors explicitly said on the House floor that the bill was designed to reach transgender people in locker rooms and performers expressing a gender identity different from their biological sex. Those statements are part of the legislative record. A court reviewing the bill’s undefined “performance” standard in that context could reasonably conclude that the undefined term was designed to give officers maximum discretion to target disfavored expression — which is precisely what the vagueness doctrine prohibits.

The Chilling Effect: Harm Without a Single Arrest

The five-stage enforcement chain described above operates at the formal, legal level. But the most immediate and pervasive harm from an undefined “performance” standard operates at a different level entirely — one that never appears in any court record.

The ACLU of Ohio identified this in its testimony: the uncertainty created by vague terms causes some people not to perform for fear they will be targeted and prosecuted. In First Amendment parlance, this is a chilling effect. It is a back-door victory for those who wish to limit or eliminate drag performances even when no citation, arrest, prosecution, or conviction ever occurs.

The mechanism is straightforward. A community theater director does not know if their production of a Shakespeare comedy — featuring a male actor in a female role — qualifies as a performance for HB 249 purposes. A Pride festival organizer does not know if a speaker who is visibly transgender and addresses a crowd constitutes an unlawful adult cabaret performance if a child is in the audience. A library that hosts a gender-nonconforming author for a children’s reading does not know whether the author’s appearance and manner of dress could be characterized as a performance by an aggressive prosecutor.

None of these people will wait to find out in court. They will cancel the theater production, restrict the festival, decline to book the author. The law achieves its restrictive effect without a single enforcement action. That is the chilling effect, and it is operative from the moment HB 249 takes effect — not from the moment of first prosecution.

Constitutional law recognizes this problem directly: constitutionally permissible activity may not be chilled because of a statute’s vagueness, particularly where the interest invaded by the vague law is sufficiently fundamental to subject the statute to strict scrutiny.

What the Bill’s Supporters Say

Supporters of HB 249 have a response to the “undefined performance” concern, and it deserves honest engagement.

Their argument is that the word “performance” carries its ordinary meaning — an intentional act of entertainment directed at an audience — and that courts routinely apply ordinary meanings to statutory terms that are not explicitly defined. They further argue that the obscenity and harmful-to-juveniles requirements provide a meaningful floor that prevents the law from reaching constitutionally protected expression, regardless of how broadly “performance” might be read.

The Center for Christian Virtue has argued that HB 249 is narrow, clear, and grounded in existing Ohio law — that it prohibits only knowingly engaging in obscene adult cabaret performances outside of designated adult venues and does not change the legal definition of obscenity.

These arguments have real legal force. Courts do apply ordinary meanings to undefined statutory terms. And the requirement that a performance be obscene or harmful to juveniles does set a genuine threshold that most expressive conduct would not reach.

The counterargument is not that the ordinary meaning of “performance” is unknowable. It is that the ordinary meaning is genuinely contested in the scenarios this bill creates. Walking, dressing, speaking, and existing in public while gender-nonconforming sit on the blurry edge of any ordinary understanding of “performance.” When a law attaches felony penalties to that blurry edge and gives individual officers the authority to draw the line without statutory guidance, the vagueness doctrine’s concerns are directly implicated.

The Practical Answer: Five Different Decision-Makers, Five Different Answers

The question “who decides if something is a performance under HB 249?” has this answer: five different people decide, in sequence, each applying their own judgment to an undefined term, each capable of reaching a different conclusion.

The officer who makes the initial stop decides. The prosecutor who files or declines charges decides. The defense attorney and prosecutor who negotiate a plea agreement decide. The jury that deliberates decides. The judge who sentences decides.

At no point in that chain does a statutory definition of “performance” constrain the decision. At every point, the outcome depends on the individual judgment of whoever is holding the authority at that moment.

Justice Sandra Day O’Connor identified the core problem decades ago: if the legislature fails to provide minimal guidelines to govern law enforcement, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.

That is not a description of a hypothetical future. If HB 249 becomes law without defining “performance,” it is a description of what Ohio’s enforcement landscape will look like the first time a transgender person attends a public event, a gender-nonconforming educator reads to students, or a community theater stages a production with cross-gender casting — and someone nearby calls the police.

If you are a performer, an event organizer, a venue operator, or anyone whose visible gender expression could be characterized as performance by an officer with discretion and no statutory definition to constrain them, consulting a licensed Ohio criminal defense attorney before HB 249 takes effect is the appropriate and prudent step.

By AllAboutLawyer.com | Updated April 4, 2026

Also on AllAboutLawyer.com:

• What Does “Regardless of Whether It’s for Consideration” Mean in Ohio HB 249?
• Does Ohio HB 249 Criminalize Being Transgender in Public?
• The Xenia YMCA Case That Started It All: What Actually Happened

Legal Disclaimer: This article is for general informational and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. HB 249 has not been signed into law. The analysis of the void-for-vagueness doctrine presented here reflects established constitutional principles and does not constitute a prediction of how any specific court will rule on any specific provision. Legal outcomes depend on specific facts, circumstances, and applicable law at the time of any legal proceeding. If you have questions about how this or any other law may affect your specific situation, consult a licensed Ohio criminal defense attorney in your jurisdiction.