A federal appeals court ruled last week that Texas can officially enforce a 2023 law that restricts some public drag shows. The 2023 law, Senate Bill 12 bans drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. Businesses who host such performances would be fined up to $10,000, and persons who violate the law could face a Class A misdemeanor.
Back in September of 2023, U.S. District Judge David Hittner blocked the law and declared it unconstitutional, saying it infringed on First Amendment rights. Hittner also said at the time of the ruling that it was not “unreasonable” to think laws like these could extend to affect activities like live theatre or dancing. This year, the Fifth Circuit Court of Appeals, consisting of a three-judge panel, unblocked the law.
According to The Texas Tribune, the panel found that the plaintiffs – which included a drag performer, drag production company and pride groups – failed to show that they intended to conduct a “sexually oriented performance” and in turn could not be harmed by the law. Those critical of the ban have pushed back on Republican lawmakers who have attempted to portray all drag performances as sexual or obscene. However, the new ruling still acknowledges that not all drag performances are explicit.
SB 12 does not include specific language about drag performances, though Republican lawmakers have claimed drag was a target for the law. Under the law, a performance is “sexually oriented” if the performer appears nude or engages in actual or simulated sexual conduct.
Many conservative states throughout the country have attempted to curb LGBTQ+ rights by imposing restrictions on public drag performances and events. This has been seen in Florida, Montana, Tennessee, and Arkansas.
In a news release, Texas’ Attorney General Ken Paxton applauded the ruling writing: “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”
Though drag performances have been discouraged for potential exposure to children, few drag performances are taking place in environments where children are present, most often occurring in bars, clubs, and other adult-populated spaces.
Plaintiffs from the original case and the ACLU of Texas have called the ruling “heartbreaking,” and have expressed intentions to continue pushing against the law. “We are devastated by this setback, but we are not defeated,” they wrote in a joint statement. “Together, we will keep advocating for a Texas where everyone – including drag artists and LGBTQIA+ people — can live freely, authentically, and without fear. The First Amendment protects all artistic expression, including drag. We will not stop until this unconstitutional law is struck down for good.”
