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Federal judge strikes down Texas drag ban

Texas drag ban plaintiff Brigitte Bandit
Texas drag ban plaintiff Brigitte Bandit Photo: Brigitte Bandit, used with permission

A federal judge in Texas has ruled that the state’s law aimed at banning drag performances is unconstitutional. U.S. District Judge David Hittner’s Tuesday ruling strikes down the anti-LGBTQ+ law, permanently preventing Texas from enforcing it.

As the Texas Tribune reported, Hittner found that the language in Texas’s Senate Bill 12 discriminates on the basis of view point and is overbroad and vague. The law, Hittner wrote, “impermissibly infringes on the First Amendment and chills free speech.”

“Not all people will like or condone certain performances,” Hittner wrote in his decision. “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.”

SB 12 was introduced and passed by Republicans in the Texas legislature earlier this year and signed into law by Gov. Greg Abbott (R) in June. The law criminalized “sexually explicit” performances in the presence of minors, defining such performances as those in which “a male performer [is] exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.” Under the law, both performers and venues that hosted such performances would have faced a $10,000 fine and up to one year in prison.

In August, the American Civil Liberties Union (ACLU) of Texas filed a lawsuit on behalf of local drag performers challenging SB 12. The complaint argued that the law unconstitutionally singled out drag performers and that its language was so broad that it effectively criminalized “an enormous swath of constitutionally protected activity, including theater, ballet, comedy, and even cheerleading.”

Hittner previously issued two temporary injunctions in August and earlier this month blocking the law from going into effect. In his Tuesday ruling, Hittner agreed with the ACLU and plaintiffs that the law’s language was overbroad.

“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,” he wrote. “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 the final version of SB 12 signed by Abbott did not explicitly mention drag, the governor and other Texas Republicans made it clear in public statements that banning public drag performances was the intention of the bill. Hittner wrote in his decision that the court could not ignore those comments.

“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” Hittner wrote. “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.”

According to the Texas Tribune, SB 12’s author, Texas state Sen. Bryan Hughes (R), vowed to challenge Hittner’s ruling.

In a statement, drag performer Brigitte Bandit, one of the plaintiffs named in the ACLU of Texas lawsuit, said that she was relieved by Hittner’s decision. “My livelihood and community has seen enough hatred and harm from our elected officials,” she said. “This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”

“Today’s ruling is a celebration for the LGBTQ community and those who support free expression in the Lone Star State,” GLAAD President and CEO Sarah Kate Ellis said. “Texas now joins an increasing number of states whose discriminatory and baseless bans on drag performances are being recognized as unconstitutional and an attack against everyone’s freedoms.”

Similar drag bans have been blocked by courts in Florida, Tennessee, and Montana for containing “overbroad” provisions that violate people’s rights to free speech and due process.

Editor’s Note: This article originally named the ACLU has leader of the lawsuit. It has been updated to reflect it was specifically the ACLU of Texas, a separate entity from the national wing.

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