Drag performer Anita Refill performs before the 48th Annual Houston Pride Parade in downtown Houston on Saturday, Aug. 15, 2026.
Raquel Natalicchio/Houston Chronicle
A federal judge in Houston has, for a second time, ruled that Texas’ 2023 restrictions on drag shows in unconstitutional and prohibited the law from being enforced.
U.S. District Judge David Hitter said the law, Senate Bill 12, “prohibit(s) huge swaths of constitutionally protected performances” and was so open-ended that it could be used to cherry-pick parts of other performances in order to deem them obscene.
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The law, which Texas conservative leaders created as a measure to protect children, is “unconstitutionally vague” and could hypothetically lead to situations such as a gymnast performing in a leotard or the (recently departed) Dolly Parton performing in a low-cut dress being accused of being “nude” and in violation of Texas law, Hittner wrote.
The 34-page decision once again barred the law from being enforced.
Hittner issued a similar ruling in 2023. That order was thrown out the Fifth Circuit Court of Appeals in February, allowing the ban to go onto Texas books. The appeals court order sent the case back to Hittner’s court and ordered him to reconsider his ruling.
The Republican-majority Legislature passed SB 12 in 2023. The law barred sexually oriented performances in front of minors and added criminal penalties for performers and civil penalties for business owners who host the shows.
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The law came amid a wave of protests from conservative groups that targeted drag shows advertising as family friendly events. State Sen. Bryan Hughes, a Republican from Mineola, drafted a bill to restrict and criminalize drag shows, but its language was changed near the end of the session to remove explicit references to the drag.
The plaintiffs, including Texas business owners, LGBTQ groups and a drag queen, argued the bill threatened performers’ livelihoods and said it would have a chilling effect on “entire genres of performances that are not obscene or inappropriate,” such as high school Shakespearean plays or Dallas Cowboys cheerleading shows.
The Woodlands Pride, a local nonprofit that has held an annual Pride festival since its founding in 2018, was among the plaintiffs in the original lawsuit. The group was dismissed from the lawsuit in April, along with a Pride group from Abilene. Their dismissal came after the Fifth Circuit ruling indicated the groups didn’t have standing to sue.
After the dismissal, two businesses that host drag shows and a Austin-based performer, Brigitte Bandit, remained as plaintiffs.
“Drag has always been a form of free expression, and it is a relief that the court recognized that today,” Bandit said in a statement released by the ACLU of Texas following the ruling. “No one should be punished for performing drag, and I wish lawmakers would take steps to protect kids from real dangers in our state instead of trying to divide and marginalize us.”
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Attorney General Ken Paxton’s office didn’t immediately respond to a request for comment.
Drag is an art form with roots that date back a millennium, and while it’s often associated with the LGBTQ community, all kinds of people have participated in or enjoyed the shows throughout world history, plaintiffs argued in their suit.
SB 12 was one of several anti-LGBTQ measures passed by lawmakers during the 2023 session.
Paxton’s office argued that the law didn’t discriminate against drag shows because it didn’t explicitly mention them by name, and said that the law was meant only to apply to “sexualized performances in the presence of minors.”
But Hittner also noted that, despite the attorney general’s argument, the law was touted as a “drag ban” by its most powerful leaders. In June 2023, Gov. Greg Abbott shared a news story with the headline “Texas Governor Signs Law Banning Drag Performances in Public,” on his X account.
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“That’s right,” Abbott wrote.
Lt. Gov. Dan Patrick in a statement at the time of the law’s passage called it a push back against “the radical left’s disgusting drag performances which harm Texas children.”
In his earlier decision, Hittner wrote that he “cannot ignore the legislative history and public statements by legislators” and said the law amounted to viewpoint discrimination.
The judge also appeared to push back against arguments that the law was meant to protect young people.
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During the 2023 trial, he noted, an expert called by Paxton’s office testified that “he had never seen someone suffer serious harm due to a drag show or other performances proscribed by S.B. 12.”
Ultimately, the judge said, there was a solution already available to people who found drag shows objectionable.
“For those who find such activities as described in this case offensive, the solution is relatively simple,” Hittner wrote. “Just don’t go.”