A federal judge has ruled Texas’s anti-drag law unconstitutional, just days after a different judge in a separate case upheld a ban on drag shows at a public university in the state.
Judge David Hittner of the U.S. District Court for the Southern District of Texas ruled Tuesday that the law “impermissibly infringes on the First Amendment and chills free speech.” Hittner had previously issued a preliminary injunction blocking the law from going into effect as planned September 1.
Senate Bill 12, signed into law by Republican Gov. Greg Abbott in June, bans “sexually oriented performances” on public property where they might be viewed by someone under 18, or in the presence of anyone under 18. While the law does not specifically mention drag performances, it is clearly intended to target them, and Abbott has boasted about it doing so.
The Woodlands Pride, Abilene Pride Alliance, Extragrams, 360 Queen Entertainment, and drag performer Brigitte Bandit sued the state over the law in August, alleging it violates the First and Fourteenth Amendments to the U.S. Constitution. They are represented by the American Civil Liberties Union of Texas and the law firm of Baker Botts.
“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” Hittner wrote in his ruling. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection.”
“Not all people will like or condone certain performances,” he further noted. “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. However, in addition to the pure entertainment value there are often political, social, and cultural messages involved in drag performances which strengthen the Plaintiff’s position.”
The Texas law is unconstitutionally broad and vague, discriminates based on content and viewpoint, and does not advance a compelling state interest, Hittner added.
“The Court sees no way to read the provisions of SB 12 without concluding that a large amount of constitutionally-protected conduct can and will be wrapped up in the enforcement of SB 12,” he wrote. “It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation.”
Hittner’s ruling is in keeping with those issued in other states. Laws restricting drag shows in Florida and Montana have been blocked by courts while suits against them proceed, and Tennessee’s anti-drag law has been struck down as unconstitutional by a federal court. Tennessee officials are appealing that ruling.
“My livelihood and community has seen enough hatred and harm from our elected officials,” said a statement issued by Bandit. “This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”
Lt. Gov. Dan Patrick suggested in a post on X, formerly Twitter, that the state will appeal. He said the law, “which restricts children from being exposed to drag queen performances, is about protecting young children and families. This story is not over.”
In a separate case, far-right Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, refused to block a Texas public university’s ban on drag shows, citing anti-transgender and anti-drag group Gays Against Groomers in doing so. Kacsmaryk, appointed by Donald Trump, is known for his opposition to LGBTQ+ equality and reproductive rights.
In a ruling released Thursday, Kacsmaryk declined to issue a preliminary injunction against West Texas A&M University’s anti-drag policy. University President Walter Wendler had expressed his opposition to a campus drag show planned for last spring to raise funds for the Trevor Project, which assists LGBTQ+ youth who are in crisis and possibly considering suicide. Children would be allowed to attend if accompanied by a parent or guardian. He said the Trevor Project’s mission is a worthy cause, but he sent out a campus-wide email stating the university would not host the show.
Wendler claimed drag is misogynistic and likened it to blackface performances. “Drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood,” he wrote. “Any event which diminishes an individual or group through such representation is wrong. … Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent.” He added, “As a university president, I would not support ‘blackface’ performances on campus.”
Spectrum WT, the LGBTQ+ student group planning the show, ended up moving it off campus but still sued because of the possibility that Wendler’s directive would interfere with other events. The university was violating the student group’s First Amendment rights to free speech and expression, according to Spectrum WT.
Kacsmaryk declined to block the university policy while the case proceeds, however, because he said Spectrum WT was unlikely to prove that a drag show was constitutionally protected. His opinion frequently referred to the planned performance as a “sexualized” one and said it did not have a political purpose. He also said Wendler was entitled to qualified immunity, a legal doctrine that says government officials cannot be held liable for actions performed in the course of their official duties.
He zeroed in on the fact that children would be admitted to the show. In footnotes, he cited Gays Against Groomers, a right-wing group that contends drag shows are grooming children for abuse. He quoted language from Gays Against Groomers’ website saying that “the overwhelming majority of gay people” oppose “the sexualization and indoctrination of children,” and that drag shows and drag queen story hours are part of this “sexualization and indoctrination.”
Kacsmaryk also cited anti-LGBTQ+ activist Christopher Rufo to back up the judge’s assertion that drag shows are full of “highly sexualized content.” The judge referred to Gays Against Groomers and Rufo even though “neither citation appears in the briefs submitted by Wendler or by the other university system officials,” the Law Dork blog notes.
Gays Against Groomers has been labeled an extremist hate group by the Anti-Defamation League.
Spectrum WT plans to appeal.
Kacsmaryk’s ruling continues a pattern of anti-LGBTQ+ stances, and he’s also taken anti-choice ones. Last year he ruled in an employment discrimination case that employers don’t have to respect employees’ pronouns or their preferences in dress or restrooms. In another ruling, which is on hold while it is appealed, he suspended Food and Drug Administration approval of a drug used to induce abortion.
Before being confirmed as a federal judge, he was a lawyer with First Liberty Institute, representing anti-LGBTQ+ clients. He has expressed opposition to marriage equality and the pending Equality Act, signed on to a letter calling trans people “delusional,” and denounced “no-fault divorce” and “permissive policies on contraception.”