Appeals court says Texas can enforce drag show ban, suggests not all drag shows violate state law

A federal appeals court has ruled that Texas can enforce a 2023 law that prohibits drag shows in public or when children are present, although the ruling indicates that the judges do not believe all drag shows would be restricted under the measure.

Senate Bill 12 bans 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 performances, and performers who violate the law could be slapped with a Class A misdemeanor.

A three-judge panel in the U.S. Circuit Court of Appeals for the Fifth Circuit on Thursday reversed an earlier decision by a district court, returning the case to the district court, according to The Texas Tribune.

In Thursday's decision, the judges ruled that most of the plaintiffs, which included a drag performer, 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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The ruling also suggests that the court does not believe all drag shows are sexually explicit and, therefore, are not impacted by the ban.

In September 2023, U.S. District Judge David Hittner ruled that the law was unconstitutional, writing that it "impermissibly infringes on the First Amendment" and that it is "not unreasonable" to believe it could affect activities such as live theater or dancing.

Critics of the ban have previously argued that GOP lawmakers were attempting to label all drag shows as sexually explicit, as Republicans continue to target the performances in Texas and several other states.

The court found that performances described by a drag production company are arguably sexually explicit, although the ruling does not specifically state which actions were included.

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"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,'" the ruling said. "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.'"

Judge Kurt Engelhardt 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, while Judge James Dennis disagreed.

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

The court also removed most of the defendants from the case before sending it back to the district court to reconsider a part of the measure that centers on the Texas attorney general's job in enforcing the law.

Texas Attorney General Ken Paxton praised the ruling, saying in a news release that he "will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances."

"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," he said.

The plaintiffs and the ACLU of Texas, which represents the plaintiffs, described the ruling as "heartbreaking," adding that they plan 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."