Texas’ ban on certain drag shows is unconstitutional, federal judge says
Texas cannot enforce a new law that restricts some public drag shows, a federal judge said Tuesday in declaring the legislation unconstitutional.
U.S. District Judge David Hittner found Senate Bill 12 “impermissibly infringes on the First Amendment and chills free speech.” The struck-down law prohibited any performers from dancing suggestively or wearing certain prosthetics in front of children.
Hittner ruled that language discriminated based on viewpoint and is unconstitutionally overbroad and vague.
“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,” the ruling reads. “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.”
While SB 12 was originally billed as legislation that would prevent children from seeing drag shows, the final version did not directly reference people dressing as the opposite gender.
However, Republican leaders, including Gov. Greg Abbott made it clear that drag shows were the bill’s target — comments and history that Hittner wrote “the court cannot ignore.”
Last month, Hittner temporarily blocked SB 12 from taking effect on Sept. 1 after a two-day hearing for a lawsuit filed against the state by a drag queen and LGBTQ+ groups.
LGBTQ+ Texans, advocates, artists and business groups who sued the state, argued that the law discriminates against the content of performances and restricts equally protected free expression that is protected under the First and 14th Amendments.
“I believe the purpose of SB 12 is to push drag and queer artistry out of public spaces,” said Brigitte Bandit, an Austin-based drag performer, during August arguments. Bandit testified to the political messaging often included in her performances.
Other states have passed similar legislation restricting drag performance, which have also been struck down by federal courts.
In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled a law there was unconstitutional in its effort to suppress First Amendment-protected speech.
As The Texas Tribune’s signature event of the year, The Texas Tribune Festival brings Texans closer to politics, policy and the day’s news from Texas and beyond. On Sept. 23, we wrapped our 2023 Festival — three lively days packed with 125+ sessions and events. Browse on-demand recordings and catch up on the biggest headlines from Festival events at the Tribune’s Festival news page.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/09/26/texas-drag-queen-law-unconstitutional/.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.
