A US court has again struck down a Texas law restricting drag performances in public or in front of children, ruling that it violates the First Amendment.
State lawmakers passed Senate Bill 12 (SB 12) in March 2023 to banning performances deemed sexually oriented or explicit on public property or in places where minors could view them.
While the final version of the law did not explicitly reference drag, early drafts did so and it supporters widely promoted it as a measure targeting drag performers.
The court first declared the legislation unconstitutional in September 2023. However, an appeals court sent the case back for further review, allowing the law to take effect in the meantime.
Following that review, US District Judge David Hittner ruled on Tuesday, for a second time, that the law restricts speech and violates the First Amendment of the US Constitution.
Judge says law is too broad and vague
Hittner found that the law’s definitions are “irredeemably vague” and “overbroad” and that “a single moment of eroticism could condemn an entire performance to criminal or civil penalties.”
He wrote that, “Just as many people criticised Elvis’s signature hip gyrations and were offended by his display of male sexuality, chastised Dolly Parton as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure, and shamed Miley Cyrus for ‘twerking’ on stage during a live performance at the 2013 MTV Video Music Awards, there are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under SB 12.”
Judge Hittner also suggested that “for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go.”
ACLU of Texas welcomes ruling
The American Civil Liberties Union (ACLU) of Texas, which challenged the drag ban in court on behalf of several plaintiffs, welcomed the ruling.
“Today’s decision confirms that the Legislature’s attempt to ban drag performances was unconstitutional from start to finish,” said Brian Klosterboer, senior staff attorney at the ACLU of Texas. “Drag has a rich history as a refuge of joy and liberation for countless Texans, and it’s not going anywhere.”
“Drag has always been a form of free expression, and it is a relief that the court recognized that today,” said Brigitte Bandit, a drag performer and a plaintiff in the case.
“We use our performances to assert liberation, power, and joy with our community. As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community. No one should be punished for performing drag, and I wish lawmakers would take steps to protect kids from real dangers in our state instead of trying to divide and marginalise us.”
Brad Pritchett (he/him), CEO of Equality Texas, added: “Drag is art, drag is joy, and drag is protected expression. Lawmakers cannot erase LGBTQIA+ people and this ruling is a win for all of us!”
Texas is one of a handful of US states to have passed legislation restricting some forms or instances of drag performance.
