Drag Ban Is Unconstitutional, Judge Rules

Tequila Rose and Brigitte Bandit read books at a Pride Is for Families event in Austin (Photo by John Anderson)

The state’s drag ban, Senate Bill 12, has been declared unconstitutional. U.S. District Judge David Hittner ruled on Sept. 26 that drag is free speech, protected by the U.S. Constitution, and ordered Ken Paxton and other government officials not to enforce the recently enacted law.

“I am currently ugly crying,” Brigitte Bandit, one of the drag performers who challenged SB 12 in court, tweeted upon learning of Hittner’s decision. She said in a separate statement that she is grateful. “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.”

SB 12 was adopted in the recent session of the Texas Legislature in response to the anti-queer hysteria currently ascendant in the Republican party. It bans any performance in a public space, or where minors are present, that displays a “prurient interest in sex.” It also prohibits the “exhibition or representation” of “actual or simulated” male and female genitals “in a lewd state,” along with “sexual gesticulations using accessories or prosthetics.” The law provides that anyone who makes such a performance can be jailed for up to a year. Venues can be fined $10,000 for each violation.

The Texas ACLU, joined by Bandit, Extragrams, and several other groups, sued Paxton and officials in Travis, Montgomery, and Taylor counties in August to stop enforcement of SB 12. They argued at a trial in August that the law is an illegal content-based restriction on free speech, that it is too broad and vague, and that it’s an unconstitutional restraint on prior speech. In his ruling, Hittner agreed with every single argument the plaintiffs made.

Hittner’s overarching message is that drag is free speech – that it is expressive – and that SB 12 violates that freedom. “Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” Hittner writes. “The Court finds it is evident drag shows express either pure entertainment or, like most types of expressive art, an underlying deeper message.”

Hittner also ruled that SB 12 is badly written – that it is unconstitutionally overbroad and vague. “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 [it],” Hittner ruled. “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.”

As the plaintiffs released statements celebrating their unconditional victory, they couldn’t help but make reference to the attacks on the queer community that the new law is part of. “This win helps to bring back the joy and acknowledges the integrity and professionalism of this fabulous art form,” said Kerry Lynn of Extragrams, an Austin-based drag entertainment company. “This has been a traumatic year for drag performers and supporting businesses – and this win means that we can breathe a sigh of relief.”

Ricardo Martinez of Equality Texas connected SB 12 to other anti-LGBTQ legislation passed by Republicans this year, including SB 14, which bans trans kids from receiving gender affirming medical care, and House Bill 900, which attempts to ban books with sexual content from school libraries. “We should all be worried about why some Texas politicians want to control which doctors we see, what stories can be told in schools, and which performers have the right to practice their art,” Martinez said. “Lawmakers tried to use drag as a scapegoat to chip away at our First Amendment rights and we’re glad the court isn’t going to allow that to happen.”