Federal judge rules Texas ‘drag ban’ unconstitutional
Carmeron Langford
HOUSTON (CN) — A bill conservative Texas lawmakers said they passed to protect children from obscene drag performances is an unconstitutional restraint on speech, a federal judge ruled Tuesday.
Senior U.S. District Judge David Hittner, a Ronald Reagan appointee, found SB 12 — dubbed the “drag ban” by proponents including Texas Governor Greg Abbott — violates the First Amendment and blocked it with a permanent injunction.
During a two-day bench trial in late August, state attorneys argued the bill does not actually target drag, despite one of its sponsor’s declaring it was meant to protect “children from explicit, hyper-sexualized drag performances in Texas.”
Texas Assistant Attorney General Taylor Gifford also contended that drag is not inherently expressive, attempting to refute claims from two drag production companies, two LGBTQ rights groups and a drag performer who claimed in a lawsuit the bill censors their freedom of expression.
Set to take effect Sept. 1 before Hittner enjoined it with a temporary restraining order, the bill would prohibit “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” at shows with anyone under age 18 in the audience.
It would impose criminal penalties on scofflaw performers of up to a year in jail, and fines of up to $10,000 on business owners who permitted such productions on their property.
The statute, which defines sexually oriented performances in part as appealing to the “prurient interest in sex,” would also give prosecutors, municipalities, counties and the Texas attorney general discretion to cancel events they believed would feature performers engaging in prohibited sexual conduct.
Represented by the American Civil Liberties Union of Texas and Baker Botts LLP, the plaintiffs noted in their lawsuit that drag has a rich history and was an integral part of English theater in the days of Shakespeare.
“Drag as an art form has roots that date back millennia, with performers crossdressing on stage since the days of ancient Greece, Egypt, China, and India. The origins of drag are also intertwined with English theater and the Christian church, since the Church of England required all roles in theater to be played by men during the Shakespearean Era,” the plaintiffs wrote.
Hittner agreed with them that the legislation is a content-based speech restriction, so Texas had to show it was narrowly tailored to promote the state’s compelling interest of protecting children.
There, the bill's authors fell short, the judge said. He pointed out it treats older teenagers the same as much younger children and provides no exceptions to enforcement for occasions when parents allow their kids to attend racy shows, or when a performer has a wardrobe malfunction.
Seizing on the bill’s language about accessories and prosthetics, Hittner also rejected the state’s assertion that SB 12 is not viewpoint discrimination because it doesn't single out drag, but targets all sexually oriented performances.
Brigitte Bandit, an Austin drag performer and plaintiff in the suit, testified that although most of her shows are at adults-only Austin nightclubs and gay bars, some of the venues’ stages are visible from adjoining streets, and families with children occasionally watch from the sidewalk.
She said she feared she could be arrested for giving passerby children an unintentional glimpse of her performances, during which people in the audience often tuck money into the cleavage of her fake breasts.
“I think SB 12’s goal is to push drag and queer artistry out of public places,” Bandit proclaimed on the witness stand.
Jason Rocha is an Army veteran who in 2018 co-founded The Woodlands Pride, a Houston-area LGBTQ organization that is also a plaintiff in the litigation.
He testified that the group’s annual Pride Festivals are its biggest fundraisers; the 2022 version generated nearly $100,000.
He said the event is open to all ages and that it would likely be impossible to ensure no one under 18 would observe a drag show, which he described as the “biggest draw of our festivals.”
Hittner also agreed with the challengers that SB 12 is unconstitutionally vague, noting that several of the plaintiffs testified that they did understand the meaning of the term “prurient interest in sex.”
“The court finds that S.B. 12 impermissibly infringes on the First Amendment and chills free speech,” he wrote in a 56-page permanent injunction order.
The Texas Attorney General’s Office will appeal the ruling, spokesperson Paige Willey said.
Plaintiffs expressed gratitude in a statement issued Tuesday by the ACLU of Texas
“I am relieved and grateful for the court's ruling,” Bandit said. “My livelihood and community has seen enough hatred and harm from our elected officials. This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”
Rocha added, “Drag is not a crime, art is not a crime, speech is not a crime; and we’re glad the court recognized that.”