Lawmaker efforts foreshadow challenges for Texas drag future

AUSTIN (KXAN) — A new Texas law which opponents feared could ban some drag performances remains tied up in court.

A federal judge out of Houston ruled the state cannot enforce the law that would restrict and criminalize "sexually oriented performances" in front of children.

The ruling stated the legislation is unconstitutional, and the judge added Senate Bill 12 violates the First and Fourteenth Amendments as he issued a permanent injunction in late September. The decision came after the judge issued two temporary restraining orders until reaching his final decision.

The legislation defines a "sexually oriented performance," as one in which someone is nude, or engages in sexual conduct and "appeals to the prurient interest in sex." It further details that performances that include "actual or simulated" sexual acts or the use of "accessories or prosthetics that exaggerate male or female sexual characteristics," cannot take place in front of minors. Opponents believe that language is broad and could be interpreted to include drag shows. The legislation does not include a mention of "drag performances."

The Office of the Attorney General is appealing. A spokesperson said no argument has been scheduled.

To get to this point, LGBTQ+ groups sued the Texas Attorney General's Office in August to stop the law from being enforced. The legislation banning "sexually oriented performances" while an "individual younger than 18 years of age" is present was set to go into effect Sept. 1.

“I’m glad that the court recognized the constitutional rights of our clients, drag performers, and their patrons, and protected their rights to freely express an art form particularly important to LGBTQ+ people,” said Brandt Thomas Roessler, senior associate at Baker Botts LLP. 

Austin drag performer Brigitte Bandit, who is among those involved in the lawsuit, celebrated the court ruling.

“I am relieved and grateful for the court's ruling,” Bandit said in a statement. “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.”

Supporters of the bill pledge the fight is far from over. 

“Surely we can agree that children should be protected from sexually explicit performances. That’s what Senate Bill 12 is about,” State Senator Bryan Hughes, R-Mineola, who authored the legislation, said to KXAN. “This is a common sense and completely constitutional law, and we look forward to defending it all the way to the Supreme Court if that’s what it takes.”

Steps to becoming law

The legislation pushed through both chambers during the regular legislative session. Hearings on the bill drew hours of public comment, at times getting heated. 

"This session y'all have talked ad nauseam about parental choice and what kids can and cannot learn," said Theo Adams-Hernandez during a public committee hearing. "If you want to trust parents about what their kids are exposed to, even when they don't hold an education degree themselves, then you should trust them to take their children to events with drag performers that are kid-appropriate performances."

Austin drag performer Brigitte Bandit testified against Senate Bill 12 during a hearing on March 23, 2023. (Texas Senate Photo)

Those against the legislation in Texas argued it targeted the LGBTQ+ community. Supporters said it's simply about protecting children.

"There are videos of young children putting dollar bills in underwear — young children being asked to strut or dance just like the drag queens, and it's exposing kids to very sexual content at an early age," said Mary Elizabeth Castle with Texas Values Action, a political lobbying and advocacy organization, during a Senate public hearing in March.

According to the law, a business owner who hosts "sexually oriented performances" in front of a minor could face a fine up to $10,000 for each violation. A performer could face misdemeanor charges if engaged in a sexually oriented performance "on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child," or "in the presence of" someone younger than 18.

"This bill is outlawing sexualized behavior in the drag shows — it's not outlawing drag," said one supporter, Cindi Castilla from Dallas, as she addressed lawmakers, "You're not banning drag. You're helping families protect their children."

Other states with similar bans

Texas joined five other states — Tennessee, Montana, North Dakota, Arkansas and Florida — which adopted either legislation restricting drag performances specifically or "adult" performances that could be used to target or restrict drag, according to the Movement Advancement Project, which is an independent, nonprofit think tank that provides research on the current state of the LGBTQ+ laws and policies across the nation. The group noted in at least three states, the laws are unenforceable due to either a temporary block or federal court order.

Some lawmakers — like State Sen. Roland Gutierrez, D-San Antonio — said during the session that Texas is focusing on the wrong thing when it comes to children. He had a heated exchange with Sen. Hughes in the Senate chamber. 

"You know, if I don't want my kid to see something, I don't have them see something. Simple as that," Gutierrez said. "Man, I'm telling you, I've been all about this session about protecting children, my friend, and we haven't done a whole lot of protecting children when it comes to guns and ammunition. I've been all about it this session, my friend."

The audience in the gallery erupted in cheers. Lt. Gov. Dan Patrick said he would clear the gallery if there were more outbursts. 

"While drag shows have received the most media attention, S.B. 12 is not limited to this type of sexually oriented performance. Drag shows today may be replaced by other types of harmful performances in the future. S.B. 12 applies to and will protect children from sexually oriented performances in general," said Hughes in his bill analysis filed in June.

Senior Investigative Producer Reporter David Barer, Creative Producer Eric Henrikson, Director of Investigations & Innovations Josh Hinkle, Lead Editor Eric Lefenfeld, Digital Executive Producer Andrew Schnitker, Digital Special Projects Developer Robert Sims and Digital Director Kate Winkle contributed to this report.