A federal judge in Houston heard arguments Monday over whether to block a new Texas law that critics say is aimed at punishing drag performers.
Opponents of the law, which creates criminal and civil penalties for those who perform or host sexually explicit shows in front of minors, argued in court that the new statute is overly broad and chills free expression.
The ACLU of Texas, suing on behalf of multiple LGBTQ+ organizations, said the law does a poor job of defining what constitutes a sexually explicit exhibition, threatening artistic performances that could be considered sexual in any way. Drag performers have been particularly fearful that they could be fined or sent to jail depending on how judges interpret their performances.
“This law targets the LGBTQ+ community of Texas, but it also threatens to strip away the rights of all Texans,” said Brian Klosterboer, a staff attorney for the ACLU of Texas.
The legislation, which is set to go into effect Friday, received widespread support from Republicans in the Texas Legislature this spring. Supporters said the law protects children from exposure to inappropriate content.
U.S. District Court Judge David Hittner said he is considering a permanent injunction that would prevent the law from taking effect. Hittner did not say Monday when he would rule on the injunction, though he hinted a decision would come before Friday.
The ACLU of Texas called five witnesses Monday and is expected to wrap their case Tuesday.
The defendants, which include Texas Acting Attorney General Angela Colmenero and government officials from Bexar, Montgomery and Travis counties, do not plan to call any witnesses Tuesday. In court filings, Colmenero has argued the law does not single out drag shows.
“It does not apply to non-sexual performances that use accessories or prosthetics that exaggerate male or female sexual characteristics — in other words, it does not apply to the mere act of a male dressing up as a female, the quintessential characteristic of drag performances,” Colmenero said in a filing last week.
The legislation became a fierce topic of debate during the spring legislative session, amid a nationwide Republican targeting of drag performers and issues related to gender identity.
As originally proposed, the bill restricted minors from attending drag shows in Texas. However, amid pushback and free speech concerns, the bill’s authors changed the language.
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.
The legal case rests, in large part, on the definitions of “sexual conduct” and the “prurient interest in sex.”
The bill includes multiple examples of sexual conduct, ranging from explicit sexual acts to gestures that involve “accessories or prosthetics that exaggerate male or female sexual characteristics.” The “prurient interest in sex” is a phrase rooted in obscenity law.
The plaintiffs, which include The Woodlands Pride, a nonprofit that has hosted an annual Pride parade and festival on public property in the township since 2018, testified Monday that drag shows they host or organize would cease to exist if the bill goes into effect.
While they don’t consider drag shows inherently sexual, an audience member or passerby could interpret elements of a show and performers’ dancing styles as violations of the new law, the plaintiffs argued.
In their legal complaint, the plaintiffs argued that language related to “accessories or prosthetics” is aimed at drag performers, who routinely wear wigs, makeup, high heels, padding and prosthetic breasts, among other items, in performances that challenge gender norms and expectations.
“Especially when I’m wearing my breastplate, someone could view that as sexual,” said Brigitte Bandit, a drag queen from Austin who has performed in cities across Texas.
The plaintiffs said many adult-only drag shows they host take place in full or partial view of public property where minors can be present, and it’s often impossible or cost-prohibitive to ensure audiences are entirely of age.
Jason Rocha, president and CEO of The Woodlands Pride, testified Monday that he fears a permit will not be issued for his organization’s October Pride event unless it guarantees that no drag performances will be held at the festival.
Previous festivals have been open to all ages and have featured drag performers, who have used “numerous” accessories and prosthetics that exaggerate male or female sexual characteristics, according to the complaint.
Rocha’s organization has planned two Pride festivals for the fall: one that features drag performances and one that does not. He argued the law will give county officials the authority to restrict or regulate what they consider to be sexually explicit performances, and drag may fall under that category.
“I believe the enforcers of the law will enforce the law,” he said while on the stand.