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A federal appeals court has made a significant ruling regarding a Texas law that restricts drag shows. This decision enables the enforcement of a 2023 statute prohibiting these performances in public or when minors are present. However, the judges defined that not all drag shows fall under this law’s scope.
Senate Bill 12 explicitly blocks drag performers from engaging in suggestive dancing or using specific prosthetics in public spaces or around children. Business owners hosting such performances might face hefty fines amounting to $10,000, while violating performers could be charged with a Class A misdemeanor.
On Thursday, a panel of three judges from the Fifth U.S. Circuit Court of Appeals overturned an earlier district court decision, as reported by The Texas Tribune. This ruling sends the case back to the lower court for further evaluation.
In their ruling, the judges determined that most of the plaintiffs, including a drag artist, a drag production company, and various pride organizations, did not demonstrate plans for what the law defines as a ‘sexually oriented performance.’ Consequently, they could not prove that the law harmed them as it is aimed at explicitly sexual performances.
Notably, the ruling implies a belief by the court that not all drag performances are sexually explicit and, hence, not adversely affected by the ban.
Background on the Legislative Context
In September 2023, U.S. District Judge David Hittner ruled the law unconstitutional, asserting that it unjustifiably infringes upon the First Amendment rights. He stated it is plausible that performances such as live theater or dance could be impacted by this legislation.
Critics have accused GOP lawmakers of casting a wide net over drag performances, aiming to categorize them as sexually explicit. This effort has become part of a broader pattern where Republican leaders target such performances in Texas and other states.
Details of the Court’s Findings
The court acknowledged that some performances described by the drag production company could indeed be regarded as sexually explicit; however, it stopped short of detailing the specific actions that fall under this classification.
When questioned about whether the performers ‘simulate contact with the buttocks of another person,’ the owner provided a stark account. The owner claimed that performers would sit on patrons’ laps in thongs, and one performer had invited a male customer to ‘spank her on the butt.’
Furthermore, the court noted the owner’s description of a recent show where a drag queen wore a revealing breastplate and provocatively engaged with the audience, highlighting gestures that raised questions about their legality, especially around minors.
Judges’ Opinions and Dissent
Judge Kurt Engelhardt remarked in a footnote that there exists ‘genuine doubt’ regarding whether such actions are constitutionally protected, particularly in contexts involving minors. Engelhardt was joined by Judge Leslie Southwick in this viewpoint, while Judge James Dennis voiced his disagreement.
Judge Dennis critiqued the language used in Engelhardt’s footnote, suggesting it clashes with established First Amendment jurisprudence and could mislead on remand.
What Lies Ahead for the Case
Following the appeal, the court removed the majority of defendants from the case, returning it to the district court to reassess aspects of the legislation related to the role of the Texas attorney general in enforcing the law.
Texas Attorney General Ken Paxton expressed approval of the decision, asserting his commitment to protecting children from exposure to what he describes as erotic and inappropriate performances. He stated that it is a privilege to defend this law, assuring Texans that efforts to maintain a family-friendly environment would continue in court.
Reactions from Advocates and Organizations
The plaintiffs, represented by the ACLU of Texas, called the ruling ‘heartbreaking.’ They conveyed their intention to contend against the law, emphasizing their resilience.
In a joint statement, the plaintiffs expressed determination, stating, ‘We are devastated by this setback, but we are not defeated. Together, we will keep advocating for a Texas where everyone—including drag artists and LGBTQIA+ individuals—can live freely, authentically, and without fear. The First Amendment safeguards all artistic expression, including drag. Our fight will not cease until this unconstitutional law is overturned for good.’
Looking Forward
The saga surrounding the drag show ban in Texas underscores ongoing debates about freedom of expression, children’s exposure to various forms of entertainment, and the intersection of politics and culture. With the appeals court’s recent ruling clarifying legal boundaries, attention now shifts to how the district court will interpret this decision as the case unfolds.
