A drag event at Mahoney’s Texish Bar and Restaurant in The Woodlands shown on Sunday, June 26, 2022.
Jamie Swinnerton
A federal appeals court has greenlit Texas’ ban on minors attending “sexually oriented performances” for now, clearing the way for the state to crack down on drag shows while a lawsuit plays out.
The Thursday morning order from three judges on the 5th Circuit Court of Appeals in New Orleans overturns the ruling of a Houston federal judge who blocked Senate Bill 12 in September 2023.
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READ MORE: Federal judge blocks Texas bill restricting drag shows as unconstitutional
The law, which was passed by the Republican-majority Legislature in 2023, makes it a crime to perform before minors while nude or partially nude or to “engage in sexual conduct” if the performance “appeals to the prurient interest in sex.” It also sets civil penalties for business owners who host such performances when people under the age of 18 are present.
In the 18-page majority opinion, Judge Kurt Engelhardt, an appointee of former President George W. Bush, wrote that plaintiffs did not sufficiently prove their First Amendment claims. The court remanded the case to the trial court for further inquiry.
While a drag company could argue that the law affects its constitutional rights, Engelhardt wrote in a footnote, “we have genuine doubt… that pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected — especially in the presence of minors.” Fellow Bush appointee Leslie Southwick joined him in the majority opinion.
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In a partial dissent, Clinton appointee Judge James Dennis wrote that the majority “turns a blind eye to the Texas Legislature’s avowed purpose: a statewide ‘drag ban.’” He also said the ruling “runs headlong into settled First Amendment jurisprudence.”
Drag performance companies, LGBTQ pride groups and Austin-based drag queen Brigitte Bandit sued Texas Attorney General Ken Paxton; the counties of Montgomery and Taylor; and the city of Abilene over the law in the summer of 2023. They argued it would threaten performers’ livelihoods and 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.
It’s unclear whether plaintiffs will appeal to the U.S. Supreme Court.
Neither the plaintiffs’ attorneys nor Paxton’s office immediately responded to Hearst Newspapers’ request for comment Thursday.
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In blocking the law, U.S. District Judge David Hittner of Houston found that by specifically barring performers from using “accessories or prosthetics that exaggerate male or female sexual characteristics,” lawmakers discriminated against people who choose to perform while “impersonating or exaggerating a sex other than the one a performer is assigned.”
Thursday’s 5th Circuit order leaves open the possibility that SB 12’s civil penalties could be struck down in the future. However, it kneecaps the plaintiffs’ effort to challenge the law’s criminal component.
The two judges in the majority ruled that only one of the plaintiffs — San Antonio-based drag production company 360 Queen — has standing to sue in the case.
Engelhardt and Southwick also dismissed claims against the local governments, saying none of the plaintiffs proved they would violate SB 12 in Montgomery or Taylor counties or the city of Abilene. Therefore, they wrote, the legal injuries wouldn’t be traceable to those places.
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That leaves the only defendant as Texas’ attorney general, who is responsible for enforcing the part of the law that applies to venues that host “sexually oriented performances.”
Dennis disagreed with this reasoning, saying that “in place of meaningful review, the opinion offers a strained and wooden account of injury and traceability that ignores the statute’s text and the practical realities of its enforcement.”
Staff writer Taylor Goldenstein contributed reporting.
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