Texas can enforce a 2023 law that restricts some public drag shows, a federal appeals court reaffirmed in a new ruling on Wednesday.
Senate Bill 12 prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. The law would fine business owners $10,000 for hosting such performances, while those who violate the law could be hit with a Class A misdemeanor.
In September 2023, U.S. District
Judge David Hittner declared the law unconstitutional, saying that it “impermissibly infringes on the First Amendment” and that it is “not unreasonable” to think it could affect activities like live theater or dancing. More than two years later in November, a three-judge panel in the 5th U.S. Circuit Court of Appeals unblocked the law and returned the case to the district court.
On Wednesday, the appeals court withdrew its November opinion and reissued a largely identical ruling, denying the plaintiff’s request for a rehearing in the process. SB 12 will now take effect on March 18, according to the American Civil Liberties Union of Texas, who represented several of the plaintiffs.
As part of the ruling, the panel found that most of the plaintiffs — a drag performer, a drag production company and pride groups — failed to show that they intended to conduct a “sexually oriented performance,” and therefore, could not be harmed by the law. The ruling suggests that the federal judges don’t believe all drag shows are sexually explicit.
Critics of the ban have previously raised concerns that Republican lawmakers were portraying all drag performances as inherently sexual or obscene.
And while the law doesn’t have language explicitly referencing drag performances, SB 12’s original version specifically included them. Republican leaders have also made it clear that drag shows are the target.
“Texas Governor Signs Law Banning Drag Performances in Public. That’s right,” Gov. Greg Abbott said in a post on X in June 2023.
SB 12 considers a performance to be sexually oriented if the performer is nude or engages in sexual conduct, which could include “actual contact or simulated contact” between one person and another person’s “buttocks, breast, or any part of the genitals.” It also has to “appeal to the prurient interest in sex” — and most didn’t meet this criteria, according to the appeals court’s ruling.
“To appeal to the ‘prurient interest in sex,’ material, at a minimum, must be ‘in some sense erotic,’” it said.
For instance, a pride group testified that some of its performers may “twerk,” but the panel said none of the conduct it described amounts to a sexually oriented performance. It also said accidental bumping or contact during front-facing hugs don’t count.
The panel did find that a drag production company’s described performances “arguably” are sexually explicit, though the ruling doesn’t specifically say which actions qualify.
“When asked whether the performers ‘simulate contact with the buttocks of another person,’ the owner testified that the performers sit on customers’ laps while wearing thongs and one performer invited a ‘handsome’ male customer ‘to spank her on the butt,’ said the ruling. “When asked whether the performers ‘ever perform gesticulations while wearing prosthetics,’ the owner testified that in 360 Queen’s most recent show, a drag queen ‘wore a breastplate that was very revealing, pulsed her chest in front of people, (and) put her chest in front of people’s faces.’”
Though Judge Kurt Engelhardt, a Trump appointee, also wrote in a footnote that there is “genuine doubt” that these actions are “actually constitutionally protected—especially in the presence of minors.” He was joined by Judge Leslie Southwick, a Bush appointee.
Judge James Dennis, a Clinton appointee, disagrees with this assessment.
“That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand,” Dennis wrote in his partial dissent in the November ruling.
In addition, the appeals court removed most of the defendants from the case, before sending it back to the district court to reconsider a part of SB 12 that focuses on the Texas attorney general’s role in enforcing the law.
Attorney General Ken Paxton cheered the November ruling in a news release.
“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” he said. “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”
The plaintiffs and the ACLU of Texas, which represents them, underscored that Wednesday’s rehearing denial maintained that family-friendly drag shows would still be legal, and said they intend to continue fighting the law.
“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” ACLU Texas attorney Brian Klosterboer said in a statement. “Because this law remains unconstitutional, we look forward to continuing this case before the district court and encourage anyone who is impacted by the law to reach out to us. Drag in Texas is here to stay.”
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Ayden Runnels contributed to this story.
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Disclosure: ACLU Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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This story was originally published by The Texas Tribune and distributed through a partnership with The Associated Press.
