A contentious legal battle in Texas has taken a dramatic turn, as a federal appeals court has allowed a 2023 law restricting drag shows to move forward. The ruling, however, reveals a nuanced perspective – the court doesn’t believe *all* drag performances fall under the law’s restrictions.
At the heart of the dispute is Senate Bill 12, a measure that prohibits suggestive dancing or the wearing of certain prosthetics during drag performances in public spaces or where children are present. Violators could face hefty $10,000 fines, while performers risk a Class A misdemeanor charge.
The Fifth U.S. Circuit Court of Appeals overturned a previous district court decision that had deemed the law unconstitutional, citing a violation of First Amendment rights. The case is now returning to the district court for further review.
The appeals court determined that many of the plaintiffs – including drag performers, a production company, and LGBTQ+ advocacy groups – hadn’t demonstrated a concrete plan for a “sexually oriented performance.” This lack of specific intent, the court argued, shielded them from immediate harm under the law.
Details emerged during the legal proceedings that painted a picture of performances the court found potentially problematic. Testimony revealed instances of performers sitting on customers’ laps while wearing minimal clothing and suggestive interactions with audience members.
One specific example involved a performer “pulsing” their chest in front of audience members and intentionally placing it near their faces, alongside the use of revealing prosthetics. Judge Engelhardt questioned whether such actions were genuinely protected under the First Amendment, particularly when minors were present.
However, the ruling wasn’t unanimous. Judge Dennis strongly dissented, arguing that the court’s commentary could mislead the district court on remand and undermined established First Amendment principles.
The court also narrowed the scope of the case, removing most of the original defendants before sending it back to the district court. The focus now centers on the authority granted to the Texas Attorney General in enforcing the law.
Texas Attorney General Ken Paxton celebrated the ruling, vowing to continue protecting children from what he termed “erotic and inappropriate sexually oriented performances.” He framed the law as a vital safeguard for Texas families.
Conversely, the plaintiffs and the ACLU of Texas expressed deep disappointment, calling the decision “heartbreaking.” They remain resolute in their fight, determined to challenge the law’s constitutionality and advocate for the rights of drag artists and the LGBTQ+ community.
The ACLU insists the First Amendment protects all forms of artistic expression, including drag, and they are prepared to continue the legal battle until the law is permanently struck down. The future of drag performance in Texas hangs in the balance, awaiting the district court’s reconsideration.
