A federal appeals court says that Texas can enforce a targeted 2023 law criminalizing drag performances that the state deems “sexually oriented.”
On Thursday, the U.S. Fifth Circuit Court of Appeals reversed U.S. District Judge David Hittner’s 2023 ruling that Senate Bill 12 — which was initially introduced as an explicit ban on drag performances in the presence of people under 18 — was unconstitutional.
The law currently criminalizes performances in which a performer is nude or appeals to the “prurient interest in sex” in a public setting where minors might be present. As advocates have pointed out, these qualifiers are vague enough that they could be wielded against anyone who expresses their sexuality or defies traditional gender roles. Businesses that host these performances are subject to $10,000 fines, while performers found in violation of Senate Bill 12 can be charged with a Class A misdemeanor. Texas Gov. Greg Abbott admitted to his plans to use the law to prohibit drag performers in a June 2023 X post, writing, “Texas Governor Signs Law Banning Drag Performances in Public. That’s right.”
In its decision, the Fifth Court found that not all drag shows are sexually oriented. This included the shows put on by the plaintiffs in the case.
In 2023, two groups launched lawsuits against the State of Texas in hopes of blocking the legislation with an injunction. One was led by drag performers and LGBTQ+ advocates represented by the American Civil Liberties Union (ACLU) of Texas, while the other was filed by the Texas Civil Rights Project, with plaintiffs arguing that the law would negatively affect Texas’ performing arts scene. Hittner then ruled that Senate Bill 12 “impermissibly infringes on the First Amendment and chills free speech” and issued a permanent injunction preventing it from taking effect.
Now, the Fifth Circuit has unblocked the law and returned the case to the district court. In its decision, the Fifth Circuit found that because the drag shows featured at ACLU plaintiffs’ Woodlands Pride and Abilene Pride festivals weren’t “sexually oriented” and “erotic,” they remained fully legal.
In a footnote, Trump appointee Judge Kurt Engelhardt wrote that there is “genuine doubt” that such actions are “actually constitutionally protected — especially in the presence of minors.”
Meanwhile, in his partial dissent, Circuit Court Judge James L. Dennis wrote that the court’s decision “turns a blind eye to the Texas Legislature’s avowed purpose: a statewide ‘drag ban.’”