A new law that would restrict certain drag performances is unconstitutional and cannot be enforced, a federal judge ruled Sept. 26.
In a 56-page ruling, U.S. Judge David Hittner said Senate Bill 12 is “an unconstitutional restriction on speech” that “violates the First Amendment as incorporated to Texas by the Fourteenth Amendment of the United States Constitution.”
Hittner previously issued a restraining order that temporarily blocked the bill from becoming law Sept. 1.
The law cannot be enforced by Attorney General Ken Paxton or several district and county attorneys mentioned in the case, Hittner ordered. A spokesperson for the attorney general’s office told Community Impact that the agency will appeal the ruling.
What they’re saying
SB 12 would have prohibited performances that include suggestive dancing, prosthetics that “exaggerate male or female sexual characteristics” and more. Opponents of the legislation have said it unfairly targets drag performers.
“SB 12 attempts to suppress drag artists and the LGBTQIA+ community, and its steep criminal and civil penalties would harm Black and Latinx transgender Texans the most,” said Chloe Kempf, an attorney for the American Civil Liberties Union of Texas, in a statement.
Hittner wrote that the law is overly vague and would have an “impending chilling effect” on free speech.
“The Court sees no way to read the provisions of SB 12 without concluding that a large amount of constitutionally protected conduct can and will be wrapped up in the enforcement of SB 12,” he wrote in the ruling. “It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation.”
The author of the bill, Sen. Bryan Hughes, R-Mineola, defended the legislation in a statement.
“Surely we can agree that children should be protected from sexually explicit performances,” Hughes said. “[This] is a common sense and completely constitutional law, and we look forward to defending it all the way to the Supreme Court if that’s what it takes.”
In a post on X, formerly known as Twitter, Lt. Gov. Dan Patrick directly referenced drag performances and said “this story is not over.”
Breaking down the bill
SB 12 would have banned “sexually oriented performances” in front of children or in public places where minors could be present.
This includes “actual or simulated ... sexual acts,” nude performers, the use of prosthetics that exaggerate sexual characteristics and other performances that appeal to “the prurient interest in sex,” according to the bill text.
The final version of the bill does not specifically reference drag shows, reflecting changes made by the Texas House in May. But critics said it still discriminated against LGBTQ+ Texans and criminalized drag performance.
SB 12 was “worded vaguely enough to give officials the power to target any performance they don't like,” said Ash Hall, a policy and advocacy strategist for the ACLU of Texas, in May.
Businesses hosting sexually oriented performances in front of children would face up to $10,000 in fines under the legislation. Performers could be charged with a Class A misdemeanor, which includes up to one year in jail, a $4,000 fine or both.
Austin-based drag performer Brigitte Bandit; The Woodlands Pride; the Abilene Pride Alliance; Extragrams, an Austin-based drag entertainment service; and San-Antonio based 360 Queen Entertainment sued state and county officials over the law.
The Woodlands Pride President Jason Rocha said Hittner’s ruling was a victory for “all those who value the freedom of expression and speech.”
“Drag is not a crime, art is not a crime, speech is not a crime; and we’re glad the court recognized that,” Rocha said in a statement.
