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A U.S. Court of Appeals just reversed a ruling made by a District Court judge in 2023, overturning his permanent injunction against Texas’ wide-reaching and vaguely worded drag ban, which the judge claimed infringed on First Amendment rights.
The plaintiffs in The Woodlands v. Paxton issued a joint statement, saying, “Today’s decision is heartbreaking for drag performers, small businesses, and every Texan who believes in free expression. Drag is not a crime. It is art, joy, and resistance — a vital part of our culture and our communities. We are devastated by this setback, but we are not defeated. […] We will not stop until this unconstitutional law is struck down for good.”
Texas S.B. 12 was signed into law in June 2023 by Gov. Greg Abbott (R) and was set to go into effect on September 1 of the same year. While the bill ostensibly made it a crime to provide “sexually oriented performances” in a commercial space, on public property, or in the presence of minors, the language of the bill and the rhetoric around it made it clear that it was intended to target drag shows in particular.
The law was quickly challenged by LGBTQ+ advocacy groups and drag groups, including The Woodlands Pride, Abilene Pride Alliance, and 360 Queen Entertainment. The case of The Woodlands v. Paxton went to U.S. District Court Judge David Hittner, who originally placed a temporary injunction on the law when plaintiffs’ arguments made it clear that the bill would impinge their First Amendment rights if it was allowed to go into effect. Hittner then doubled down by extending the injunction and then making it permanent in September 2023.
At the time, Hittner wrote that the bill “impermissibly infringes on the First Amendment and chills free speech,” while making it clear that he felt the bill discriminated on point of view, was overly broad, and vague. “Not all people will like or condone certain performances,” Hittner continued in his original decision. “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.”
The U.S. Court of Appeals for the Fifth Circuit made a majority ruling today to reverse Hittner’s ruling and remanded the case back to his court. The justices declared that most of the plaintiffs in the case did not have the requisite standing to bring the lawsuit in the first place, as they found the performances of The Woodlands Pride and Abilene Pride insufficiently sexual to have a real risk of punishment under the law’s wording.
They now require that Hittner revisit the case, focusing only on the claims from 360 Queen Entertainment, whose performances include simulated sexual acts and include other features more likely to be targeted by S.B. 12. They are also requiring Hittner to make his new decision under the standard established in the Supreme Court case for Moody v. NetChoice, which set the precedent for First Amendment challenges to only be viable if the law is unconstitutional more than it is constitutional.
One of the Appeals Court judges partially dissented, presenting concerns that the decision “turns a blind eye to the Texas Legislature’s avowed purpose: a statewide ‘drag ban.’” In doing so, he highlighted the rhetoric used by Republicans during the bill’s passage, which clearly expressed their intent, regardless of the letter of the law.
Both Texas and many of its cities already have laws on the books that protect minors from witnessing sexually explicit performances. Gov. Abbott shared on X/Twitter an article titled “Texas Governor Signs Law Banning Drag Performances in Public,” adding the words “That’s right.” Similarly, Lt. Gov. Dan Patrick (R) said it was to “ban children’s exposure to drag shows.” The author of the bill, state Sen. Bryan Hughes (R), provided “drag shows” as an example of the “sexually explicit performances” that would be prohibited.
While the intent is clear from the comments of those involved, the bill’s original text demonstrates the motivations that underpinned it. An earlier version of the bill has a line under the definitions of “features” in “sexual conduct” that includes “a male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.” That definition would include everything from Tom Holland’s Lip Sync Battle appearance to cosplayers.
The House Committee report from May 26, 2023, shows the line removed. Instead, the definition of “sexually oriented performances” is edited to include “exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics,” which clearly targets breast forms and packers common in drag shows.
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