Austin Drag Queen Brigitte Bandit gives testimony in the Senate Chamber at the Texas State Capitol on March 23, 2023 in Austin, Texas.
Brandon Bell/Getty Images
UPDATE: Aug. 26, 9:34 a.m.
In a statement on social media, Texas Attorney General Ken Paxton said he would appeal Judge David Hittner’s decision to strike down Texas’ drag show law “immediately.”
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“This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” Paxton said on social media.
As of Wednesday morning, the Texas Attorney General’s office had yet to file an appeal.
Five months after a Texas law restricting some public drag shows went into effect, seemingly ending a years-long legal battle, a federal court has once again found the law unconstitutional.
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In a ruling handed down on Tuesday, U.S. District Judge for the Southern District of Texas David Hittner ruled that Texas’ law banning drag shows around minors is “facially overbroad” and “unconstitutionally vague.” The law, Senate Bill 12, bans bars and other businesses from hosting sexually oriented performances when people under 18 are present. Texas lawmakers passed SB 12 in 2023 during a state legislative session that featured a bevy of bills targeting LGBTQ+ Texans.
The law enabled the Texas attorney general to fine businesses found in violation, but Hittner’s ruling bars the office from doing so. Hittner had originally ruled SB 12 unconstitutional in 2023, shortly after it was passed, and a long legal battle ensued. Texas Attorney General Ken Paxton appealed Hittner’s ruling to the U.S. Fifth Circuit Court of Appeals, which heard oral arguments in October 2024. In November 2025, the Fifth Circuit ruled the law could take effect but sent the case back to Hittner for further analysis. Hittner again found SB 12 unconstitutional.
Throughout his ruling, Hittner, a Ronald Reagan appointee, repeatedly cited Texas Republicans’ own stated intentions to use SB 12 to ban drag shows in Texas, despite the final law never once using the word “drag.” Hittner’s opinion includes a tweet from Gov. Greg Abbott, who tweeted on June 24, 2023 a news article headlined “Texas Governor Signs Law Banning Drag Performances in Public.”
“That’s right,” Abbott added in that tweet. Abbott was one of a myriad of Texas Republicans who depicted drag shows as sexually explicit, sometimes pedophilic events. Hittner wrote in his ruling that SB 12 “imposes content and viewpoint-based restrictions on protected speech and does not satisfy strict or even intermediate scrutiny.”
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SB 12 bans “sexually oriented performances” and defines them as performances that show a nude performer or a performer engaging in “sexual conduct” that “appeals to the prurient interest in sex.” Hittner took particular umbrage with this section of SB 12, writing that the law doesn’t specify how any performance, not just drag, might “appeal to the prurient interest in sex.” Because of this, Hittner writes that any performance deemed by one person to be sexually explicit could land a business in trouble with the state. Hittner wrote that this definition could apply to performers as varied as Elvis Presley, the late Dolly Parton, and Miley Cyrus, all of whom have been deemed sexually explicit.
“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under SB 12,” Hittner wrote.
‘Drag is protected expression’
Austin drag queen and well-known Texas LGBTQ+ rights activist Brigette Bandit, one of several plaintiffs in the case, hailed Hittner’s ruling as a win for the First Amendment.
“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. “We use our performances to assert liberation, power, and joy with our community. As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community. No one should be punished for performing drag.”
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“Drag is art, drag is joy, and drag is protected expression,” Brad Pritchett, CEO of LGBTQ+ rights group Equality Texas, said. “Lawmakers cannot erase LGBTQIA+ people and this ruling is a win for all of us!”
The ruling, for now, leaves SB 12 unenforceable and allows drag artists to continue performing in Texas without fear of the law. Some Texas gay bars said they feared how the law might be enforced if they hosted drag shows, though that didn’t stop shows from happening around the state. In ending his ruling, Hittner had advice for opponents of drag shows who believe they are inappropriate and sexually deviant.
“Finally, for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go,” Hittner concluded.
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