Earlier this week, U.S. District Judge David Hittner declared Senate Bill 12 unconstitutional. He found that the law, which puts restrictions on certain public drag performances, can’t be enforced because it is vague, overbroad and chills free speech.
SB 12 was intended to outlaw drag shows in the presence of minors, but lawmakers eventually shed drag references in favor of the term “sexually oriented performances.” Supporters of the law say it’s aimed at shielding young Texans from inappropriate material, but opponents insist that the art isn’t inherently lewd or sexual.
Courts in other states that have attempted to squelch drag have also found such legislation to be unconstitutional, noted Johnathan Gooch with the pro-LGBTQ+ advocacy group Equality Texas. He’s glad that Texas performers can continue to make a living, especially given that the state promotes a business-friendly ethos.
Critics point out that aside from drag queens and kings, SB 12 could ensnare other professions.
“Shakespeare includes drag and cross-dressing, even some cheerleaders or different types of performances that involve exaggerated dances that might be perceived as sexual — a lot of pop dances, back-up dancers at hit music shows,” Gooch said. “Could you imagine if Beyoncé became illegal in Texas?”
Brigitte Bandit, a drag performer and plaintiff in the lawsuit challenging SB 12, welcomed the news in a statement. She cited the harm caused by elected officials to her community and livelihood.
“SB12, the Texas drag ban bill, has officially been declared unconstitutional and is BLOCKED,” Bandit wrote on X (formerly Twitter) on Tuesday. “[A]nd I am currently ugly crying.”
The bill’s author, state Sen. Bryan Hughes, responded to the news on X Tuesday, calling SB 12 a “common sense” measure. He defended its constitutionality and said he’s prepared to take it all the way to the U.S. Supreme Court.SB12, the Texas drag ban bill, has officially been declared unconstitutional and is BLOCKED. and I am currently ugly crying.
— Brigitte Bandit💘 (@BrigitteBandit) September 26, 2023
The office of the state’s attorney general reportedly plans to appeal.
Attorney Chloe Kempf with the ACLU of Texas told the Observer that the plaintiffs in this case feel a sense of relief.
“They're very happy. For some of them, [drag is] part of their livelihood, and for all of them, it's a hugely important form of self-expression and self-exploration, and a way to celebrate and bring together the LGBTQ community,” she said. “And so to have that back, and to have that be recognized, was very meaningful to them.”
The ACLU of Texas took on the case because it believes that — regardless of someone’s gender identity, sexual orientation or race — all Texans should be able to artistically express themselves, free from government censorship, Kempf said. She acknowledged that the ruling could potentially be appealed.
“But no matter what happens, we're going to see this through and keep fighting for our plaintiffs and for the free speech rights of all Texans,” Kempf continued.
“Texas drag is a part of our history, and it’s not going anywhere.” – Monique Alcala, Texas Democratic Party Executive Director
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Meanwhile, another federal judge in Texas has adopted a different approach to SB 12.
U.S. District Judge Matthew Kacsmaryk last week sided with the president of a Texas university who’d canceled a drag show on campus. West Texas A&M University President Walter Wendler put the kibosh on the student-led event earlier this year, which would have raised funds for an LGBTQ+ suicide prevention organization.
Wendler claimed that drag shows are “demeaning” to women and compared them to “‘blackface’ performances.” But Hittner notes that the First Amendment safeguards expression that others may view as morally objectionable or offensive.
“Not all people will like or condone certain performances,” the judge wrote, according to The Texas Tribune. “This is no different than a person's opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection.”
The Texas Democratic Party also welcomed Hittner’s ruling.
TDP Executive Director Monique Alcala told the Observer via email that Texas Republicans were dealt a huge blow this week, and that the state’s Dems will continue fighting for the rights of LGBTQ+ folks.
She said even though GOP lawmakers know that expressive freedom is enshrined in the First Amendment, they filed SB 12 anyway, sending the message to LGBTQ+ Texans: “Sit back, shut up and stay out of sight.”
Alcala further railed against Republican-backed policies that she argued pose a greater risk to young Texans than drag.
“Here in Texas, children are forced to give birth. Far-right gun laws encourage gun violence in schools, but our state legislature says kids can’t read books that discuss accurate accounts of history or personal expression,” she said. “It’s backwards and sickening that our Republican opponents think they know what's best for our kids when they can’t even bring their best foot forward when it comes to governing our state.
“Texas drag is a part of our history,” she continued, “and it’s not going anywhere.”
