Texas ban on sexually explicit drag shows can be enforced, federal appeals court rules

(The Texas Tribune) — Texas can enforce a 2023 law that restricts some public drag shows, a federal appeals court ruled Thursday. 

Senate Bill 12 prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. The law would fine business owners $10,000 for hosting such performances, while those who violate the law could be hit with a Class A misdemeanor. 

In September 2023, U.S. District Judge David Hittner declared the law unconstitutional, saying that it “impermissibly infringes on the First Amendment” and that it is “not unreasonable” to think it could affect activities like live theatre or dancing. More than two years later, a three-judge panel in the Fifth Circuit Court of Appeals unblocked the law and returned the case to the district court. 

As part of the ruling, the panel found that most of the plaintiffs — a drag performer, a drag production company and pride groups — failed to show that they intended to conduct a “sexually oriented performance,” and therefore, could not be harmed by the law. The ruling suggests that the federal judges don’t believe all drag shows are sexually explicit. 

Critics of the ban have previously raised concerns that Republican lawmakers were portraying all drag performances as inherently sexual or obscene.

And while the law doesn’t have language explicitly referencing drag performances, SB 12’s original version specifically included them. Republican leaders have also made it clear that drag shows are the target.

“Texas Governor Signs Law Banning Drag Performances in Public. That’s right,” Gov. Greg Abbott said in a post on X in June 2023. 

SB 12 considers a performance to be sexually oriented if the performer is nude or engages in sexual conduct, which could include “actual contact or simulated contact” between one person and another person’s “buttocks, breast, or any part of the genitals.” It also has to “appeal to the prurient interest in sex” — and most didn’t meet this criteria, according to the appeals court’s ruling.

“To appeal to the ‘prurient interest in sex,’ material, at a minimum, must be ‘in some sense erotic,’” it said. 

For instance, a pride group testified that some of its performers may “twerk,” but the panel said none of the conduct it described amounts to a sexually oriented performance. It also said accidental bumping or contact during front-facing hugs don’t count. 

The panel did find that a drag production company’s described performances “arguably” are sexually explicit, though the ruling doesn’t specifically say which actions qualify. 

“When asked whether the performers ‘simulate contact with the buttocks of another person,’ the owner testified that the performers sit on customers’ laps while wearing thongs and one performer invited a ‘handsome’ male customer ‘to spank her on the butt,’ said the ruling. “When asked whether the performers ‘ever perform gesticulations while wearing prosthetics,’ the owner testified that in 360 Queen’s most recent show, a drag queen ‘wore a breastplate that was very revealing, pulsed her chest in front of people, [and] put her chest in front of people’s faces.’”

Though Judge Kurt Engelhardt, a Trump appointee, also wrote in a footnote that there is “genuine doubt” that these actions are “actually constitutionally protected—especially in the presence of minors.” He was joined by Judge Leslie Southwick, a Bush appointee. 

Judge James Dennis, a Clinton appointee, disagrees with this assessment.

“That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand,” Dennis wrote in his partial dissent. 

In addition, the appeals court removed most of the defendants from the case, before sending it back to the district court to reconsider a part of SB 12 that focuses on the Texas attorney general’s role in enforcing the law. 

Attorney General Ken Paxton cheered the ruling in a news release. 

“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” he said. “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”  

The plaintiffs and the ACLU of Texas, which represents them, called the Thursday ruling “heartbreaking” and said they intend to continue fighting the law.   

“We are devastated by this setback, but we are not defeated,” they said in a joint statement. “Together, we will keep advocating for a Texas where everyone — including drag artists and LGBTQIA+ people — can live freely, authentically, and without fear. The First Amendment protects all artistic expression, including drag. We will not stop until this unconstitutional law is struck down for good.”