Texas can enforce a 2023 law that restricts some public drag shows, according to a three-judge panel in the Fifth Circuit Court of Appeals who ruled to unblocked the law and return the case to the district court.
The law in question, Senate Bill 12, prohibits 'sexually oriented performances' in public or where children are present, which includes drag shows that are deemed sexually explicit. This can include certain types of dance or the use of specific prosthetics.
Businesses hosting such performances can be fined $10,000, and those violating the law can be charged with a Class A misdemeanor.
In September 2023, U.S. District Judge David Hittner declared the law unconstitutional, saying that it “infringes on the First Amendment” and that it is “not unreasonable” to think it could affect activities like live theater or dancing.
As part of the ruling, the panel found that most of the plaintiffs — a drag performer, a drag production company and pride groups — failed to show that they intended to conduct a “sexually oriented performance,” and therefore, could not be harmed by the law. The ruling suggests that the federal judges don’t believe all drag shows are sexually explicit.
While the law doesn’t have language explicitly referencing drag performances, SB 12’s original version specifically included them. SB 12 considers a performance to be sexually oriented if the performer is nude or engages in sexual conduct, which could include “actual contact or simulated contact” between one person and another person’s “buttocks, breast, or any part of the genitals.” It also has to “appeal to the prurient interest in sex” — and most didn’t meet this criteria, according to the appeals court’s ruling.
The panel did find that a drag production company’s described performances “arguably” are sexually explicit, though the ruling doesn’t specifically say which actions qualify. In addition, the appeals court removed most of the defendants from the case, before sending it back to the district court to reconsider a part of SB 12 that focuses on the Texas attorney general’s role in enforcing the law.
SB 12 considers a per-formance to be sexually oriented if the performer is nude or engages in sexual conduct, which could include “actual contact or simulated contact” between one person and another person’s “buttocks, breast, or any part of the genitals.” It also has to “appeal to the prurient interest in sex” — and most didn’t meet this criteria, according to the appeals court’s ruling.