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By Lauren McGaughy | The Dallas Morning News
AUSTIN — A federal judge on Tuesday declared a Texas law targeting drag shows unconstitutional, siding with LGBTQ Pride event organizers and performers who sued and blocking its enforcement.
U.S. District Court Judge David Hittner ruled the law, known as Senate Bill 12, violated the free speech and expression rights of drag performers and was written too vaguely to be easily understood or enforced.
“Not all people will like or condone certain performances,” Hittner wrote. “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.”
Hittner, who was appointed by Ronald Reagan, added that the “chilling effect S.B. 12 will have on speech in general outweighs any hardship on the State of Texas.”
Texas Attorney General Ken Paxton will likely appeal the ruling. An agency spokesperson did not immediately respond to a request for comment.
Senate Bill 12 was one of several laws targeting LGBTQ rights passed during this year’s legislative session.
While the version passed into law prohibits sexual performance in front of minors, the bill’s author and other supporters boasted it would effectively ban all drag performances in public or in front of children.
The law expanded the definition of sexual conduct to include real or “simulated” groping, display of a sex toy, “sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” if the acts “appeal to the prurient interest in sex.”
Under the law, violations were a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine, for performers and a $10,000 civil penalty per violation for businesses.
The day before it became effective on Sept. 1, Hittner put the law on temporary hold. At a hearing in federal court earlier in August, drag performers and LGBTQ rights activists testified that the bill would restrict freedom of expression and hinder their ability to make art and a living.
The plaintiffs include the organizers of LGBTQ Pride events in Abilene and The Woodlands, as well as Austin-based drag queen Brigitte Bandit, who often impersonates Dolly Parton.
The attorney general argued both that the drag performances are not protected under the First Amendment and that the law is “content neutral” that does not target such shows.
Hittner disagreed. In his decision Tuesday, the judge ruled that while “drag” is not mentioned in the law, lawmakers intent to target such shows was explicit. He also found that drag shows, and performers therein, do enjoy First Amendment protections.
Hittner said the law is also too broad and vague, and could ban common activities “such as cheerleading, dancing, live theater, and other common public occurrences” and “any performance in public that is deemed to violate S.B. 12.”
He granted the permanent injunction because the plaintiffs successfully argued that they would win their case if it went to trial.
Bandit expressed relief at the decision.
“My livelihood and community has seen enough hatred and harm from our elected officials. This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers,” Bandit said in a press release.
Similar drag laws in other states have also been struck down for being too vague and violating performers rights.
©2023 The Dallas Morning News. Visit dallasnews.com. Distributed by Tribune Content Agency, LLC.
