Texas drag ban ruled unconstitutional; federal judge issues permanent injunction

FOX 7 Austin Digital Team
Tue, September 26, 2023 

Texas drag ban ruled unconstitutional

A federal judge has issued a permanent injunction against Senate Bill 12, blocking the legislation from becoming law.

HOUSTON - A district court judge has ruled Texas' ban on drag shows unconstitutional.

A federal judge in the Southern District of Texas has issued a permanent injunction blocking the legislation from becoming law. This also stops the Texas Attorney General and other government officials from enforcing any part of the ban.

Previously a temporary restraining order had been in place and extended blocking Senate Bill 12 from going into effect on Sept. 1.

SB 12 targets any performance that could be perceived as "sexual" and proposes criminal penalties, including up to a year in jail, for artists and others who support them.

AUSTIN, TEXAS - AUGUST 26: Austin, Tx drag queen Brigitte Bandit reads a book during a drag time story hour at The Little Gay Shop fashion accessories store on August 26, 2023 in Austin, Texas. SB12, a bill seeking to regulate sexually oriented performances by restricting such performances on the premises of public property, or in the presence of individuals younger than 18 years of age, goes into effect September 1, 2023. The ACLU of Texas is representing local LGBTQ groups, businesses, and drag queen Brigitte Bandit in a lawsuit against state officials enforcing the bill. Among other claims, the lawsuit argues that the bill poses harm and unconstitutional censorship to several types of performers including Broadway plays, theater performances, cheerleading, and drag shows. 

(Photo by Brandon Bell/Getty Images)More

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The ACLU of Texas, which filed a lawsuit in August along Baker Botts LLP on behalf of LGBTQ groups, businesses and Austin drag queen Brigitte Bandit, previously said SB 12 violates the First and Fourteenth Amendments and threatens the livelihood and free expression of many Texans, including drag performers.

"Today’s ruling blocks a law that threatens some of the most cherished First Amendment freedoms we all hold dear," said ACLU of Texas attorney Chloe Kempf in a release. "S.B. 12 attempts to suppress drag artists and the LGBTQIA+ community, and its steep criminal and civil penalties would harm Black and Latinx transgender Texans the most."

The ACLU says the law is written in a way that could censor many constitutionally protected performances, from touring Broadway plays and professional cheerleading routines to karaoke nights and drag shows, anywhere that anyone under the age of 18 may be present.

Texas law banning drag performances in front of children ruled unconstitutional by federal judge

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Tue, September 26, 2023 

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The Texas law dubbed the "Drag Ban" that restricted "sexually oriented performances" in the presence of a child or on public property was ruled unconstitutional on Tuesday by a federal judge, who issued a permanent injunction that bars state officials from enforcing it.

Senate Bill 12 was signed by Republican Gov. Greg Abbott in June and was set to go into effect Sep. 1, but it was blocked after being challenged by the American Civil Liberties Union (ACLU), which filed a lawsuit against the law last month.

In his ruling, U.S. District Judge David Hittner for the Southern District of Texas said the law was "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 further ordered Republican Texas Attorney General Ken Paxton and other state officials to not enforce the law.

According to one of the definitions in the law, a "sexually oriented performance" means a visual performance that features "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" and "appeals to the prurient interest in sex."

Critics have referred to the law as a "drag ban," though its author and supporters say it was proposed and signed into law to protect children.

The ACLU filed its lawsuit in the U.S. District Court in the Southern District of Texas in Houston and said the law "unconstitutionally singles out drag performances as a disfavored form of expression." It also asserted that several terms are not defined or are written in a way that targets protected expression.

"Drag" was described in the lawsuit as an "art form" that is "inherently expressive" and has no set standard. "As with any art form, there is nothing inherently sexual or obscene about drag," the lawsuit reads. "Drag can be performed for any age level and in any venue, since drag artists tailor their performances to their audience."

Fox News Digital has reached out to Paxton's office for comment.

Fox News' Greg Wehner contributed to this report.