Texas Drag Show Law Upheld by Appeals Court
An appeals court has decided, as of Wednesday, that Texas can enforce a law regulating drag performances in public spaces where minors are present. This ruling reverses a previous order from a lower court that had put a stop to the state’s enforcement.
The Fifth Circuit Court of Appeals upheld a November ruling, confirming that Texas can apply its 2023 law governing “performances of sexual orientation.” The court indicated that only one of the plaintiffs in the original case had legal standing and directed the matter back to a lower court for further consideration of the plaintiff’s First Amendment arguments.
In a statement on social media, Texas Attorney General Ken Paxton, who is also running for a Senate seat, hailed the ruling as a significant success. He mentioned that he has defended laws that protect children from inappropriate content at drag shows, emphasizing his commitment to keeping such performances away from younger audiences.
The lawsuit was initiated by various LGBTQ organizations regarding a state Senate bill that classifies sexually oriented performances as those featuring nudity or sexual acts. Under this law, individuals could face charges related to causing minors to participate in such performances.
Justice Kurt Engelhardt, appointed by President Trump, authored the opinion with Justice Leslie Southwick, appointed by former President George W. Bush, concurring. They concluded that most plaintiffs, including a nonprofit named Woodlands Pride, lacked standing to contest the First and 14th Amendment claims because their performances were deemed not to violate Texas law. However, the group “360 Queen Entertainment” was found to perform in front of minors, thus qualifying for consideration under the law.
Engelhardt noted that evidence from the trial suggested that performances from 360 Queen might involve prohibited conduct. He described a particular show where a drag queen, wearing revealing attire, engaged closely with the audience.
The court instructed the district court to evaluate whether 360 Queen is justified in claiming that the Texas law infringes on their First Amendment rights.
Commenting on the ruling, Brian Klosterbohr from the American Civil Liberties Union of Texas stated that while some drag performances were found to be effectively family-friendly, the law—set to be enforced beginning in March—still presents constitutional issues. He warned about its ambiguous and broad language, suggesting it could negatively impact not only drag artists but various forms of performing arts in Texas.
In 2023, Judge David Hittner, appointed by Ronald Reagan, had previously ruled the Texas law unconstitutional, expressing concerns that it could affect activities like live theater and dance. However, the Fifth Circuit reversed this ruling last November and reaffirmed its stance without reconsidering the appeal on Wednesday.
