Texas once again cannot enforce its restrictions on some public drag shows after a federal judge declared a 2023 law unconstitutional for the second time.
U.S. District Judge David Hittner initially declared Senate Bill 12 unconstitutional in September 2023 only a few months after it was passed by the Texas Legislature, citing First Amendment violations. More than two years later in November, the 5th U.S. Circuit Court of Appeals unblocked the law and returned the case to Hittner with specific instructions on how to reassess it.
Hittner reaffirmed his ruling Tuesday, August 25, stating in his order that besides removing several plaintiffs and defendants from the lawsuit, the appellate court’s decision “did not disturb” his prior decision declaring SB 12 unconstitutional. The ruling again pauses the law, which had gone into effect in March after the 5th Circuit’s decision.
The ruling described SB 12 as overly broad in its definitions of performance and nudity, stating that provocative cosplay at conventions, swimming athletes, or Dolly Parton and Elvis impersonators could potentially be penalized under the law.
“The vast majority of the law’s numerous applications violate the First Amendment because all the performances that it has an actual impact on are constitutionally protected and are targeted for prohibition based on content and viewpoint,” Hittner wrote.
The suit was originally filed against Texas Attorney General Ken Paxton, two counties three district attorneys, and one county attorney by two community pride groups, two entertainment groups, and Brigitte Bandit, a drag queen and longtime Texas LGBTQ+ rights activist. After the 5th Circuit’s ruling, the two pride groups were removed as plaintiffs and Paxton was left as the sole defendant, which Hittner said satisfied the higher court’s instructions.
Tiffany Epiphany with local celeb and activist Brigitte Bandit at an Austin Pride parade. Photo by Natalie Grigson
“We use our performances to assert liberation, power, and joy with our community,” Bandit said in a statement provided by the American Civil Liberties Union of Texas, which represented the plaintiffs. “As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community.”
SB 12 as adopted in law contains no language explicitly referencing drag performances, however a previous version while in the Legislature specifically included references to drag. Hittner noted in Tuesday's ruling that opponents of drag performances are not obligated to attend them.
“Finally, for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go,” he wrote.
Hittner also denied a request from Paxton for a supplemental trial and new discovery in the case. Paxton, in a social media post Tuesday, said his office would seek an appeal to the ruling to protect Texas kids.
“This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” he said.
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This story was originally published by The Texas Tribune and distributed through a partnership with The Associated Press.
