A federal judge in Houston ruled Tuesday that a new Texas law dealing with sexually explicit performances and children was unconstitutional, siding with drag performers and LGBTQ+ organizations that had challenged the law.
During a two-day hearing last month, lawyers with the ACLU of Texas on behalf of the organizations argued the law amounted to an illegal ban on many public and private drag performances. They also argued the law, known as Senate Bill 12, is overly broad and chills free expression.
U.S. District Court Judge David Hittner agreed, writing in a 56-page order that the “plain reading of this could virtually ban any performance in public that is deemed to violate SB 12, including drag shows.”
“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 of SB 12,” he wrote.
Lawyers with the ACLU of Texas hailed the ruling, saying in a statement that the law would have harmed Black and Latinx transgender Texans the most.
“As the court recognized, SB 12 is also vague, overbroad, and chills entire genres of performances that are not obscene or inappropriate, from high school Shakespearean plays to the Nutcracker ballet to the Dallas Cowboys cheerleaders,” said Chloe Kempf, a staff attorney for the ACLU of Texas.
The order comes nearly a month after Hittner first issued a temporary restraining order blocking enforcement of the law for two weeks. Hittner later extended his temporary restraining order to Wednesday.
The Texas Attorney General’s Office said late Tuesday that it would appeal the decision. Lawyers for the office have argued the law does not ban all drag performances, though Texas Gov. Greg Abbott said the bill banned such acts in public after he signed it in June.
As originally proposed, the bill restricted minors from attending drag shows in Texas. The bill’s authors changed the language after an outcry from LGBTQ+ groups. Critics have still dubbed the bill a “drag ban.”
Under the law, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or engaging in “sexual conduct,” and also appealing to the “prurient interest in sex.”
Those participating in the performance would be charged with a misdemeanor that carries penalties of up to one year in jail and a $4,000 fine.
Sexual conduct is defined under SB 12 as the exhibition of sexual acts and sex toys; contact between one person’s breasts, buttocks or any part of their genitals with another person’s; and gestures using “accessories or prosthetics that exaggerate male or female sexual characteristics.”
In his ruling, Hittner agreed with arguments made by lawyers for the LGBTQ+ organizations that language related to “accessories and prosthetics” targets drag performers.
“This language goes beyond mere content-based discrimination because it is now directed at the specific act of impersonating or exaggerating a sex other than the one a performer is assigned,” Hittner wrote. “Additionally, the court cannot ignore the legislative history and public statements by legislators purporting that SB 12 is at least in part a ban on drag shows.”
Hittner also found that drag shows, contrary to the state’s contention, are expressive conduct that warrants First Amendment protection.
“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” he said. “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.”
SB 12 is problematic in that it doesn’t distinguish a child’s age and would conceivably treat an older teenager the same as it would a younger child, Hittner said in his ruling. It also fails to include parental discretion or mistakes made by performers, he said.
The legal case turned in large part on the definitions of “sexual conduct” and “prurient interest in sex,” a phrase that has its roots in obscenity law.
Hittner, who was appointed by former President Ronald Reagan, said in his order that the phrase “prurient interest in sex,” is not clearly defined and would be open to interpretation.
Municipalities and counties were also banned under the law from authorizing sexually oriented performances on public property or in the presence of minors.
Texas’ acting attorney general and government officials from Bexar, Montgomery and Travis counties were named as defendants in the suit.
The plaintiffs in the lawsuit included The Woodlands Pride, a nonprofit that has hosted an annual Pride parade and festival on public property in the township since 2018.
Jason Rocha, the group’s president and CEO, testified in court last month that drag shows are the festival’s biggest draw and parents routinely bring their kids to watch. But with the passage of SB 12, he fears a private citizen who views drag shows as overtly sexual could use the law to file legal complaints against organizers and performers.
On Tuesday, Rocha said in a statement that he was pleased with the court’s decision. “We share this victory with the other plaintiffs, the LGBTQIA+ community, the ACLU of Texas, and all those who value the freedom of expression and speech,” he said.
“The Woodlands Pride was founded in 2018 to bring awareness of LGBTQIA+ issues to the suburban and rural areas. As we celebrate our 5th anniversary, we are part of a statewide effort that blocked a bill that targeted drag and the LGBTQIA+ community.”