A federal appeals court ruled on Thursday that Texas can enforce an ostensible drag show ban bill that was signed into law two years ago but later halted by a lower court.
Senate Bill 12, in fact, prohibits all public performers “from dancing suggestively or wearing certain prosthetics [like fake boobs or a fake penis] on public property or in front of children,” according to The Texas Tribune.
The law includes a $10,000 fine for business owners who host prohibited shows, and a Class A misdemeanor for the performers themselves.
Months after Texas Gov. Greg Abbott signed SB12 into law in 2023, U.S. District Judge David Hittner ruled the bill unconstitutional because it “impermissibly infringes on the First Amendment and chills free expression.”
A Republican appointed judge declared SB12, the Texas Drag Ban, unconstitutional today and issued a permanent injunction. From inception to signage this was always attacking drag performers and LGBTQ+ people. Excellent work to the orgs & advocates who fought it all along the way! pic.twitter.com/pzTNhO9JgN
— Brad Pritchett (@bradpritchett) September 26, 2023
A three-judge panel of the Fifth Circuit Court of Appeals ultimately disagreed this week, arguing that the plaintiffs — drag show performers and their lobbyists — hadn’t proven that the law would affect them, given that the law specifically targets “sexually oriented performance[s].”
“As part of the ruling, the panel found that most of the plaintiffs … failed to show that they intended to conduct a ‘sexually oriented performance,’ and therefore, could not be harmed by the law,” the Tribune explained.
Indeed, SB12 only identifies a performance as “sexually oriented” if the performer gets nude or engages in or simulates sexual activity.
“To appeal to the ‘prurient interest in sex,’ material, at a minimum, must be ‘in some sense erotic,'” two members of the Appeals court panel, Trump appointee Judge Kurt Engelhardt and George W. Bush appointee Judge Leslie Southwick, ruled.
The two also expressed doubt about SB12 violating the First Amendment.
“We have genuine doubt, however, that pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected—especially in the presence of minors,” they wrote.
The third panel member, Clinton appointee Judge James L. Dennis, dissented, arguing that his colleagues were turning “a blind eye” to what he alleged was the law’s real purpose, which was to ban all drag shows.
“He pointed to legislative records and public comments from Texas officials such as Gov. Greg Abbott and Lt. Gov. Dan Patrick, who celebrated the law’s passage as a ban on drag shows,” according to The Advocate magazine.
Texas Governor Signs Law Banning Drag Performances in Public.
That’s right.
https://t.co/eC7OqElsbU via @metroweekly— Greg Abbott (@GregAbbott_TX) June 25, 2023
He also disputed his colleagues’ position that the plaintiffs weren’t likely to violate SB12.
“It is entirely plausible that Plaintiffs’ gendered expressions, costuming, prosthetics, and choreography could be viewed by factfinders and officials empowered to enforce S.B. 12 as appealing to the prurient interest in sex,” he wrote.
And lastly, he appeared to defend sexualized performances.
“Drag — a costumed, choreographed, and frequently parodic performance that speaks in the idiom of gender — plainly participates in that protected tradition,” he wrote. “The majority’s effort to collapse an entire art form into a few salacious acts turns these principles on their head.”
The case now returns to Hittner, who has essentially been ordered by the higher court to reconsider the case “under the U.S. Supreme Court’s Moody v. NetChoice standard.”
This standard “allows facial First Amendment challenges only if a law’s unconstitutional applications ‘substantially outweigh’ its valid ones,” The Advocate makes clear.
The plaintiffs and their reps with the ACLU of Texas issued a statement after Thursday’s ruling, calling it “heartbreaking” and vowing to continue fighting.
“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.”
Texas Attorney General Ken Paxton, meanwhile, celebrated the ruling.
“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” he said. “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.”
Writers and editors can be contacted at [email protected] with feedback, tips, or corrections.
V. Saxena is a staff writer with a decade of experience as a professional writer, and a lifetime of experience as an avid news junkie. He holds a degree in computer technology from Purdue University. Saxena also contributes to BizPac Review.
- Middle school celebrates ‘Transgender Awareness Week’ with lessons on binding body parts - December 9, 2025
- Vermont school raises Somali flag, and all hell breaks lose - December 9, 2025
- Jan 6th pipe bomb suspect has ‘My Little Pony’ obsession - December 9, 2025
Comment
We have no tolerance for comments containing violence, racism, profanity, vulgarity, doxing, or discourteous behavior. If a comment is spam, instead of replying to it please click the ∨ icon below and to the right of that comment. Thank you for partnering with us to maintain fruitful conversation.