Federal Judge Strikes Down Texas Law Restricting Drag Shows
Judge David Hittner found the law overly broad and vague, offering a simple solution to those offended: "Just don't go."
A federal judge in Texas has struck down a state law seeking to restrict drag shows, declaring the law to be unconstitutional.
Under the law, business owners who host a “sexually oriented performance” on public or private property can be fined up to $10,000 per violation if anyone under the age of 18 is present. Performers can be charged with a Class A misdemeanor, punishable by a fine of up to $4,000 or up to a year in jail.
The bill defines a “sexually oriented performance” as one in which a performer — whether paid or not — is nude or simulates nudity, engages in sexual conduct, uses accessories that “exaggerate male or female sexual characteristics,” or presents an overall performance that “appeals to the prurient interest in sex.”
In practical terms, businesses wishing to host drag-themed events would likely have to card patrons and turn away families with children to avoid violating the law. But with the exception of age-restricted bars or nightclubs, most venues would likely be unwilling to risk losing revenue by limiting admission to adults — effectively resulting in the cancellation of drag performances.
In addition to finding the law unconstitutional, Hittner, a Reagan appointee, blocked Texas Attorney General Ken Paxton — who is currently running for the U.S. Senate — from enforcing it and denied his motion for a new trial.
Critics of the “drag ban,” including free speech and LGBTQ advocates, sued the state to block its enforcement after Republican Gov. Greg Abbott signed it into law in June 2023.
Hittner struck down the law later that year, ruling that it was overly broad and vague and constituted “viewpoint discrimination” against those who do not find drag objectionable.
That ruling was appealed to the 5th U.S. Circuit Court of Appeals, which vacated it and sent the case back to Hittner for further proceedings, instructing him to apply precedents established by the U.S. Supreme Court and the 5th Circuit. But on August 25, Hittner ruled that even under those precedents, his finding that the law is unconstitutional would stand.
Hittner found the “drag ban” overly broad, noting that activities such as cheerleading, dancing, or live theater could be deemed “sexually oriented” under the law.
“[Senate Bill] 12 applies to countless protected performances that might contain elements that are ‘in some sense erotic’ and meet either the law’s definition of ‘nude’ or ‘sexual conduct,’ but are not obscene or obscene for minors and are thus constitutionally protected,” Hittner wrote.
Hittner offered several examples: “(1) a gymnast performing a floor routine wearing a leotard or other garment that rides up and reveals a small part of their buttocks; (2) a vocalist wearing a low-cut dress that reveals a small part of the breast; or (3) a ballet dancer who experiences a wardrobe malfunction and reveals a portion of their buttocks or breasts.”
He found the law vague “because it fails to give a reasonable person notice of what is prohibited.”
“Even though multiple aspects of the law render it vague, the most glaring issue ‘relates to the term “prurient interest in sex,”‘” Hittner wrote. “Because the term ‘is undefined in Texas law, lacks a readily ascertainable ordinary meaning, and applies to all performances targeted by the statute,’ it renders S.B. 12 irredeemably vague…in violation of the Fourteenth Amendment’s Due Process Clause.”
He even cited Dolly Parton, who died on August 25, as an example of the law’s potential reach. He noted that the singer-songwriter had been chastised “as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure.”
Hittner concluded his ruling: “Finally, for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go.”
Paxton blasted the decision on social media, promising an immediate appeal to the conservative 5th Circuit.
Brigitte Bandit, a drag queen and Dolly Parton impersonator who is among the plaintiffs challenging the law, celebrated the ruling.
“Drag has always been a form of free expression, and it is a relief that the court recognized that today,” Bandit said in a statement. “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 marginalize us.”
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