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Judge Blocks Texas’s Anti-Drag Show Law, Citing First Amendment Speech Rights

“Drag shows express a litany of emotions and purposes” that warrant protection, the judge wrote.

Texas drag queen Brigitte Bandit speaks during a news conference after a court hearing for Senate bill SB12 at the Bob Casey United States Courthouse on August 29, 2023, in Houston, Texas.

A federal judge has found Texas’s law targeting drag performances to be overly vague and in direct violation of First Amendment speech rights, thus rendering it unenforceable.

U.S. District Judge David Hittner issued his ruling on Tuesday, placing a permanent injunction on the law known as Senate Bill 12. While the Texas statute doesn’t expressly mention drag shows, it’s clear that Hittner understood it to be targeting drag shows and performers, as he cited multiple instances of Republican lawmakers citing the law as being passed for that purpose.

Hittner ruled that the law was incongruent with the First Amendment of the U.S. Constitution, in direct violation of speech rights of drag performers in the state. Hittner also rejected the notion that drag performances are lewd or obscene.

“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” Hittner wrote. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection.”

The vagueness of the law was also problematic, wrote Hittner, an appointee of former President Ronald Reagan. “It is not unreasonable to…conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation” under the law, he noted in his ruling.

Hittner went on:

Not all people will like or condone certain performances. This is no different than a person’s opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection. However, in addition to the pure entertainment value there are often political, social, and cultural messages involved in drag performances.

SB 12 targets some speech that doesn’t “rise to the definition of obscenity,” making the law a “content-based restriction” that doesn’t meet strict scrutiny standards justifying regulation, Hittner added.

Drag performers and rights groups praised the ruling.

“I am relieved and grateful for the court’s ruling. My livelihood and community has seen enough hatred and harm from our elected officials,” performer Brigitte Bandit, who was one of many plaintiffs in the case, told The Texas Tribune. “This decision is a much-needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”

“LGBTQIA+ Texans, venue owners, performers, and our allies all came together to uphold free expression in our state — and we won,” the ACLU of Texas, which represented litigants suing the state, wrote on social media. “This work isn’t done but for now we celebrate. Long live Texas drag!”

A handful of states have passed legislation banning drag shows over the past several months, either explicitly or by banning so-called “cabaret” or “adult” performances, which would likely include drag shows. LGBTQ advocates have condemned the bans as attempts to criminalize LGBTQ culture and expression, noting that trans people in particular have been targeted.

“This is the goal, they want to eliminate LGBTQ people from public life,” said Alejandra Caraballo, a trans rights activist and civil rights attorney, in response to a report in May that a lesbian bar in Texas was at risk of losing its insurance coverage due to the drag ban.

Hittner’s ruling will likely be appealed by the state, at which time it will move to the conservative-leaning Fifth Circuit Court of Appeals. That court recently placed a stay on a federal case originating from Texas in which a judge blocked a state law banning the inclusion of books with LGBTQ and racial themes in school libraries.

“Anyone considering the stability of Tuesday’s ruling from Hittner should bear that in mind,” Chris Geidner wrote at Law Dork, a legal reporting and analysis publication.

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