Texas can now enforce its 2023 drag ban, court rules, in setback for LGBTQ+ performers

A U.S. appeals court has ruled that Texas can begin enforcing a 2023 law restricting drag performances, reversing an earlier decision that found the measure unconstitutional.

The Fifth Circuit Court of Appeals announced on Thursday (6 November) that it had overturned district judge David Hittner’s ruling, which last year blocked Senate Bill 12 on free-speech grounds.

Hittner previously said the legislation “impermissibly infringes on the First Amendment and chills free speech”, granting a permanent injunction to stop it from taking effect.

Two separate lawsuits were filed last year to block the measure

Senate Bill 12, signed by Republican governor Greg Abbott, criminalises performances that involve nudity or appeal to the “prurient interest in sex” in any public space where minors might be present. Venues hosting such shows can face fines of up to $10,000, while performers risk a Class A misdemeanour.

Abbott made his intentions clear when he celebrated the bill on X in June 2023, writing: “Texas Governor Signs Law Banning Drag Performances in Public. That’s right.”

Opponents say the law’s vague wording could be used to target anyone who expresses gender non-conformity or LGBTQ+ identity, not only drag artists.

Two separate lawsuits were filed last year to block the measure. One was brought by drag performers and LGBTQ+ advocates represented by the American Civil Liberties Union (ACLU) of Texas, and another by the Texas Civil Rights Project, which warned of its potential harm to the state’s performing arts sector.

The Fifth Circuit has now lifted the injunction and sent the case back to the district court

The Fifth Circuit has now lifted the injunction and sent the case back to the district court. The panel found that the drag shows staged at ACLU plaintiffs’ Woodlands Pride and Abilene Pride festivals were not “sexually oriented” or “erotic” and therefore would not fall under the new restrictions.

Judge Kurt Engelhardt, a Trump appointee, wrote in a footnote that there is “genuine doubt” such performances are “actually constitutionally protected – especially in the presence of minors”.

In a partial dissent, Judge James L. Dennis argued the majority “turns a blind eye to the Texas Legislature’s avowed purpose: a statewide ‘drag ban.’” He added that the opinion “runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand”.

“Drag is not a crime. It is art, joy, and resistance” – the ACLU of Texas and plaintiffs in The Woodlands v. Paxton

Advocates fear the ruling could have broader consequences for LGBTQ+ Texans. Lambda Legal attorney Carl Charles previously warned that similar laws could apply to “two trans people going out and singing karaoke”.

In a joint statement, the ACLU of Texas and plaintiffs in The Woodlands v. Paxton called the decision “heartbreaking for drag performers, small businesses, and every Texan who believes in free expression”.

“Drag is not a crime. It is art, joy, and resistance – a vital part of our culture and our communities,” the statement said. “We are devastated by this setback, but we are not defeated.”