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Federal judge declares Texas law restricting drag performances unconstitutional

Cynthia Lee Fontaine performs for a crowd outside the Texas Capitol protesting anti-LGBTQ legislation in March.
Alyssa Olvera
Cynthia Lee Fontaine performs for a crowd outside the Texas Capitol protesting anti-LGBTQ legislation in March.

A federal judge ruled Tuesday that a law severely restricting drag performances in Texas is unconstitutional and cannot be enforced.

In his ruling, U.S. District Judge David Hittner, an appointee of former Republican President Ronald Reagan, said Senate Bill 12 is an “unconstitutional restriction on speech” and that it “violates the First Amendment as incorporated to Texas by the Fourteenth Amendment of the United States Constitution.”

The ruling is a victory for LGBTQ+ rights advocates who have said the law targets drag performers for no real reason.

Brigitte Bandit, an Austin-based drag performer who sued the state, said in a statement she was relieved.

“My livelihood and community has seen enough hatred and harm from our elected officials,” Bandit said. “This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”

Tuesday’s ruling is expected to be appealed by Texas Attorney General Ken Paxton, who didn’t immediately respond to a request for comment.

A spokesperson for Sen. Bryan Hughes, R-Mineola, the author of the bill, also did not respond to a request for comment.

Jason Rocha, a plaintiff in the lawsuit and president of The Woodlands Pride, said Tuesday’s ruling is a victory for those “who value the freedom of expression and speech."

“Drag is not a crime, art is not a crime, speech is not a crime; and we’re glad the court recognized that,” Rocha said.

What was in the blocked bill

Under Senate Bill 12, “sexually oriented performances” would be banned from happening in front of minors.

According to the law’s language, that includes nude performers, performances that appeal “to the prurient interest in sex,” and any other sexual conduct, like “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”

Supporters of the measure have claimed the law seeks to shield minors from sexually explicit content.

In a statement on X (formerly Twitter), Lt. Gov. Dan Patrick said the bill is “about protecting young children and families. This story is not over.”

But critics of the measure say it is part of an anti-LGBTQ+ agenda pushed by Republicans in the Texas Legislature.

In May, Marti Bier, the vice president of programs at the progressive Texas Freedom Network, said they and others “refuse to be fooled by attempts to trick Texans into thinking this bill is not intended to target drag, and by extension, the LGBTQIA+ community that has found acceptance and chosen family through performance.”

The lawsuit was brought by Bandit, The Woodlands Pride, Inc., Abilene Pride Alliance, Extragrams LLC and 360 Queen Entertainment LLC.

It named eight other defendants besides Paxton, including the district attorneys of Montgomery, Taylor and Bexar Counties, as well as the county attorney of Travis County, who would be tasked with enforcing the law.

This is not the first time a federal judge has blocked a measure targeting drag performers from going into effect.

According to the Movement Advancement Project, five other states — Montana, Tennessee, North Dakota, Arkansas and Florida — have passed laws that either explicitly restrict drag performers or could be used to target them.

Judges have blocked the laws in three of those states.

Copyright 2023 KUT 90.5. To see more, visit KUT 90.5.

Sergio Martínez-Beltrán