Texas Drag Show Ban Upheld by Appeals Court

A federal appeals court has upheld a Texas law from 2023 that bans drag shows in public spaces and when children are present. The court’s ruling suggests that the justices believe not all drag performances would fall under this restriction.

Senate Bill 12 prohibits drag performers from suggestive dancing in public or performing in front of minors, as well as from wearing certain prosthetic legs. Violation of this law could lead to a fine of $10,000 for business owners hosting such events, while performers could face a Class A misdemeanor.

A three-judge panel with the 5th U.S. Circuit Court of Appeals reversed a previous district court decision on Thursday, sending the case back for further evaluation, according to the Texas Tribune.

In its decision, the panel found that most plaintiffs, which included drag performers and production companies, did not have plans for “sexually oriented performances.” As such, they would not be harmed by the laws aimed at restricting sexually explicit acts.

The ruling also implied that the court does not view all drag shows as falling under the sexually explicit category and thus does not automatically qualify for exemption from the ban.

Back in September 2023, U.S. District Judge David Hittner deemed the law unconstitutional, stating it represented an “unacceptable violation of the First Amendment” and could potentially affect activities like live theater and dance.

Critics have previously accused Republican lawmakers of attempting to label all drag shows as sexually explicit, as these shows have come under fire in Texas and other states.

The court acknowledged that certain performances described by a drag production company were likely sexually explicit; however, it did not detail the specific acts involved.

Justice Kurt Engelhard noted that there are “real questions” about whether some actions performed by drag artists could be constitutionally protected, especially regarding minors. Justice Leslie Southwick agreed, while Justice James Dennis expressed dissent.

Justice Dennis argued that the decision contradicts established First Amendment principles and might send misleading messages on remand.

Following the ruling, the court dismissed most defendants from the case and instructed the district court to reconsider Texas Attorney General’s law enforcement responsibilities.

Texas Attorney General Ken Paxton praised the court’s ruling, asserting that Texas “will always strive to protect children from erotic and inappropriate performances.”

Paxton expressed pride in defending the law, emphasizing the aim to keep the state safe for families and children, and he looks forward to continuing the legal battle.

In contrast, the plaintiffs and the ACLU of Texas, representing them, termed the decision “heartbreaking” and vowed to keep fighting the law. They stated, “We are devastated by this setback, but not defeated.” They emphasized their commitment to advocating for a Texas where all individuals, including drag artists and members of the LGBTQIA+ community, can live freely and authentically, insisting on the First Amendment’s protection of artistic expression.