Federal appeals court allows Texas to enforce law restricting drag shows

A federal appeals court has ruled that Texas can enforce a 2023 law banning drag shows in public or in the presence of children, although the ruling indicates the justices do not believe all drag shows would be restricted under the measure.

Senate Bill 12 prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. Business owners could be fined $10,000 for hosting these shows, and performers who break the law could face a Class A misdemeanor.

A three-judge panel of the Fifth U.S. Circuit Court of Appeals reversed an earlier district court ruling on Thursday, sending the case back to the district court, according to the Texas Tribune.

In Thursday’s ruling, the judges ruled that most of the plaintiffs, which included a drag performer, a drag production company and pride groups, had not planned a “sexually oriented performance,” meaning they could not be harmed by the law that seeks to restrict sexually explicit dancing, the outlet reported.

COURT SETS OUT OHIO SCHOOL PRONOUN POLICY IN WIN PARENTAL RIGHTS CLASS

Senate Bill 12 prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. (Patrick Lantrip/Daily Memphian via AP, File)

The ruling also suggests that the court does not consider all drag shows to be sexually explicit and therefore not covered by the ban.

In September 2023, U.S. District Judge David Hittner ruled that the law was unconstitutional, writing that it “unacceptably infringes on the First Amendment” and that it is “not unreasonable” to believe that it could affect activities such as theater or dance.

Critics of the ban have already argued that Republican lawmakers are trying to label all drag performances as sexually explicit, while Republicans continue to target performances in Texas and several other states.

The court found that performances portrayed by a drag production company are arguably sexually explicit, although the ruling did not specifically state what actions were included.

APPEALS COURT ALLOWS ARKANSAS’ FIRST BAN ON GENDER TRANSITION CARE FOR MINORS TO ENFORCE

The ruling suggests that the court does not consider all drag shows to be sexually explicit and therefore not covered by the ban. (Brandon Bell/Getty Images)

“When asked whether the performers were ‘simulating touching another person’s buttocks,’ the owner stated that the performers sat on customers’ laps while wearing flip-flops and that one performer invited a ‘handsome’ male customer ‘to spank him on the buttocks,'” the ruling states. “When asked if performers ‘ever did gesticulations while wearing prosthetics,’ the owner said that in 360 Queen’s most recent show, a drag queen ‘wore a very revealing breastplate, fluttered her chest in front of people, (and) stuck her chest in people’s faces.'”

Judge Kurt Engelhardt also wrote in a footnote that there is “real doubt” whether these actions are “actually constitutionally protected, particularly in the presence of minors.” He was joined by Justice Leslie Southwick, while Justice James Dennis dissented.

“This gratuitous assertion clashes with established First Amendment jurisprudence and threatens to mislead on remand,” Dennis wrote in his partial dissent.

The court also removed most of the defendants from the case before sending it back to the district court to reconsider part of the measure focused on the Texas attorney general’s work in enforcing the law.

Texas Attorney General Ken Paxton welcomed the decision, saying in a press release that he “will always strive to protect our children from exposure to erotic and inappropriate sexual performances.”

Texas Attorney General Ken Paxton welcomed the decision, saying he will “always strive to protect our children from exposure to erotic and inappropriate performances of a sexual nature.” (Hannah Beier/Bloomberg via Getty Images)

CLICK HERE TO DOWNLOAD THE FOX NEWS APP

“I am honored to have defended this law, ensuring our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand in District Court,” he said.

The plaintiffs and the ACLU of Texas, which represents the plaintiffs, called the decision “heartbreaking,” adding that they plan to continue fighting the law.

“We are devastated by this setback, but we are not defeated,” they said in a joint statement. “Together, we will continue to advocate for a Texas where everyone – including drag artists and LGBTQIA+ people – can live freely, authentically and without fear. The First Amendment protects all artistic expression, including drag. We will not stop until this unconstitutional law is permanently repealed.