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A federal appeals court has ruled that Texas can enforce a 2023 law banning drag shows in public places or when children are present, although the ruling notes that the justices do not believe all drag shows would be restricted under the measure.
Senate Bill 12 would prohibit 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 subject to a Class A misdemeanor.
A three-judge panel of the 5th U.S. Circuit Court of Appeals on Thursday overturned an earlier decision by a district court, remanding the case to the district court, according to the Texas Tribune.
In Thursday’s decision, the justices ruled that most of the plaintiffs, who include a drag artist, a drag production company and pride groups, were not found to have planned a “sexually oriented performance,” meaning they could not be harmed by the law that seeks to restrict sexually explicit dances, the outlet reported.
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Senate Bill 12 would prohibit drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. (Patrick Lantrip/Daily Memphian via AP, File)
The ruling also notes that the court does not believe that all drag shows are sexually explicit and therefore not affected by the ban.
In September 2023, U.S. District Judge David Hittner ruled the law unconstitutional, writing that it “impermissibly violates the First Amendment” and that it was “not unreasonable” to believe it could affect activities such as live theater or dance.
Critics of the ban previously argued that GOP lawmakers were trying to classify all drag shows as sexually explicit, as Republicans continue to target shows in Texas and several other states.
The court found that the performances described by Drag’s production company were sexually explicit, although the ruling did not specifically say which actions were included.
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The ruling notes that the court does not believe that all drag shows are sexually explicit and, therefore, not affected by the ban. (Brandon Bell/Getty Images)
“When asked if the performers simulated contact with another person’s buttocks, the owner testified that the performers sat on customers’ laps while wearing thongs and one of the performers invited a ‘handsome’ male customer to hit her on the buttocks,” the ruling said. “When asked if the performers made gestures while wearing prosthetics, the owner testified that in the most recent 360 Queen show, the drag queen wore armor that was very revealing, beat her chest in front of people, (and) put her chest in front of people’s faces.”
Justice Kurt Englehart also wrote in a footnote that there is “real doubt” that these acts are “truly constitutionally protected — especially in the presence of minors.” Judge Leslie Southwick joined in, while Judge James Dennis dissented.
“This indefensible adage flies in the face of First Amendment jurisprudence and threatens to mislead pretrial detention,” Dennis wrote in his partial dissent.
The court also removed most of the defendants from the case before returning it to the district court to reconsider a portion of the proceeding that focuses on the Texas attorney general’s job of enforcing the law.
Texas Attorney General Ken Paxton praised the ruling, saying in a press release that it “will always protect our children from exposure to inflammatory and indecent sexually oriented performances.”
Texas Attorney General Ken Paxton praised the ruling, saying it “will always protect our children from exposure to provocative and indecent sexual advances.” (Hannah Beier/Bloomberg via Getty Images)
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“It is an honor to defend this law, to ensure our state remains safe for families and children, and I look forward to continuing to vigorously defend it while on pretrial detention in district court,” he said.
Prosecutors and the American Civil Liberties Union of Texas, which represented the plaintiffs, called the ruling “heartbreaking,” adding that they plan to continue fighting the law.
“We are devastated by this setback, but not defeated,” they said in a joint statement. “Together, we will continue to stand up for a Texas where everyone — including drag artists and people in the LGBTQIA+ community — can live freely, authentically, and without fear. The First Amendment protects all forms of artistic expression, including drag. We will not stop until this unconstitutional law is repealed forever.”