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Texas’ ban on certain drag shows is unconstitutional, federal judge says

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Texas’ ban on certain drag shows is unconstitutional, federal judge says

Sep 26, 2023 | 4:13 pm ET
By Alejandro Serrano William Melhado
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Texas’ ban on certain drag shows is unconstitutional, federal judge say
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Drag queen Scarlett Kiss performs at Long Play Lounge in East Austin on June 12, 2021. (Sophie Park/The Texas Tribune)

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Texas cannot enforce a new law that restricts some public drag shows, a federal judge said Tuesday in declaring the legislation unconstitutional.

U.S. District Judge David Hittner found Senate Bill 12 “impermissibly infringes on the First Amendment and chills free speech.” The struck-down law prohibited any performers from dancing suggestively or wearing certain prosthetics in front of children.

Hittner ruled that language discriminated based on viewpoint and is unconstitutionally overbroad and vague.

“The Court sees no way to read the provisions of SB 12 without concluding that a large amount of constitutionally-protected conduct can and will be wrapped up in the enforcement of SB 12,” the ruling reads. “It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation.”

The plaintiffs who sued the state celebrated the order, saying in statements shared by their lawyers that the decision affirmed their rights to express themselves.

“I am relieved and grateful for the court's ruling,” drag performer Brigitte Bandit said. “My livelihood and community has seen enough hatred and harm from our elected officials. This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”

Republican state Sen. Bryan Hughes, who authored SB 12, defended the bill and pledged to challenge the ruling. The Texas Attorney General's Office will appeal the ruling, a spokesperson said.

“Surely we can agree that children should be protected from sexually explicit performances. That’s what Senate Bill 12 is about," Hughes said. "This is a common sense and completely constitutional law, and we look forward to defending it all the way to the Supreme Court if that’s what it takes."

Critics of the bill, though, say that Republican lawmakers and officials this year have incorrectly — and unfairly — portrayed all drag performances as inherently sexual or obscene.

While SB 12 was originally billed as legislation that would prevent children from seeing drag shows, the final version did not directly reference people dressing as the opposite gender.

However, Republican leaders, including Gov. Greg Abbott, made it clear that drag shows were the bill’s target — comments and history that Hittner wrote “the court cannot ignore.”

Last month, Hittner temporarily blocked SB 12 from taking effect on Sept. 1 after a two-day hearing for a lawsuit filed against the state by a drag queen and LGBTQ+ groups.

LGBTQ+ Texans, advocates, artists and business groups who sued the state, argued that the law discriminates against the content of performances and restricts equally protected free expression that is protected under the First and 14th Amendments.

In Tuesday's 56-page ruling, Hittner noted a survey of court decisions "reveals little divergence from the opinion that drag performances are expressive content that is afforded First Amendment protection."

"Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles," the ruling reads. "There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection."

Other states have passed similar legislation restricting drag performance, which have also been struck down by federal courts.

In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled a law there was unconstitutional in its effort to suppress First Amendment-protected speech.

Bucking that trend, another Texas federal judge last week issued an opinion that supported drag show restrictions.

U.S. District Judge Matthew Kacsmaryk said that West Texas A&M University President Walter Wendler acted within his authority when he canceled a campus drag show. Kacsmaryk wrote that Free Speech jurisprudence had "not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’”

Hittner acknowledged his Panhandle counterpart's ruling Tuesday. Hittner pointed to a letter in which Wendler explained his reasoning for banning the show, comparing drag to blackface and a slapstick sideshow.

"The president's sentiment reinforces this Court's opinion that while some people may find a performance offensive or morally objectionable, it does not mean the performance is not expressive or given First Amendment protection," he wrote. "Not all people will like or condone certain performances. This is no different than a person's opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection."

LGBTQ+ advocates welcomed Hittner's decision Tuesday.

"Today’s ruling is a celebration for the LGBTQ community and those who support free expression in the Lone Star State," GLAAD President and Chief Executive Officer Sarah Kate Ellis. "Texas now joins an increasing number of states whose discriminatory and baseless bans on drag performances are being recognized as unconstitutional and an attack against everyone’s freedoms."


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