Federal appeals court allows Texas to enforce law restricting drag shows

A federal appeals court has ruled that Texas can enforce a 2023 law banning drag shows in public or involving children; However, the decision shows that the justices do not believe that all drag shows will be restricted under this measure.

Senate Bill 12 bans drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. Business owners could face a $10,000 fine for hosting these shows, and performers who violate the law could be punished with a Class A misdemeanor.

On Thursday, a three-judge panel on the U.S. Fifth Circuit Court of Appeals reversed an earlier district court decision and sent the case back to the district court, The Texas Tribune reported.

In Thursday’s decision, the judges ruled that most of the plaintiffs, who included a drag performer, a drag production company and pride groups, had not planned a “sexually motivated performance”; This means they cannot be harmed by the law aimed at restricting sexually explicit dancing.

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The ruling also suggests that the court did not believe all drag shows were obscene and was therefore unaffected by the ban.

In September 2023, U.S. District Judge David Hittner ruled that the law was unconstitutional, writing that it “unacceptably violates the First Amendment” and that it was “not unreasonable” to believe it could affect events such as live theater or dance.

Critics of the ban have previously argued that GOP lawmakers are trying to label all drag shows as obscene, while Republicans continue to target shows in Texas and some other states.

The court found that the performances described by a drag production company were likely obscene, but the decision did not clearly state what acts were involved.

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The ruling suggests that the court did not believe all drag shows were obscene and was therefore unaffected by the ban. (Brandon Bell/Getty Images)

“When asked whether the performers ‘simulated contact with another person’s buttocks,’ the owner testified that the performers sat on customers’ laps while wearing thongs, and that one artist invited a ‘handsome’ male customer to ‘spank his butt,'” the ruling said. “When asked if performers ‘do any movements while wearing prosthetics,’ the owner stated that at 360 Queen’s most recent show, a drag queen ‘wore a very revealing breastplate, pulsating her chest in front of people (and) putting her chest in front of people’s faces.'”

Judge Kurt Engelhardt also wrote in a footnote that there was “real doubt” that these acts were constitutionally protected “especially in the presence of minors.” Judge Leslie Southwick agreed, while Judge James Dennis disagreed.

“This unnecessary provision falls squarely within established First Amendment jurisprudence and threatens to mislead on remand,” Dennis wrote in his partial dissent.

The court also removed most of the defendants from the case and sent the case back to the district court to reconsider part of the measure, which focuses on the Texas attorney general’s duty to enforce the law.

Texas Attorney General Ken Paxton praised the decision, saying in a press release that he “will always work to protect our children from exposure to erotic and inappropriate sexually oriented performances.”

Texas Attorney General Ken Paxton praised the decision, saying he “will always work to protect our children from exposure to erotic and inappropriate sexually oriented performances.” (Hannah Beier/Bloomberg via Getty Images)

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“It has been an honor to defend this law that ensures our state remains safe for families and children, and I look forward to continuing to defend it vigorously while in custody before the district court,” he said.

The plaintiffs and the ACLU of Texas, which represents the plaintiffs, called the decision “heartbreaking” and added that they plan to continue fighting the law.

“We are devastated but not defeated by this setback,” they said in a joint statement. “Together, we will continue to advocate for a Texas where everyone, including drag performers and LGBTQIA+ individuals, can live freely, authentically, and without fear. The First Amendment protects all artistic expression, including drag. We will not rest until this unconstitutional law is fully repealed.”