HOUSTON (KXAN) — A federal judge issued a permanent injunction Tuesday against a Texas law that would restrict and even criminalize drag performances, handing a legal victory to a local drag performer who joined four other plaintiffs in suing state leaders to block the law from taking effect.
In his lengthy 56-page ruling, U.S. District Judge David Hittner concluded his order by saying Senate Bill 12 “is an unconstitutional restriction on speech,” adding he believed it violates the First and Fourteenth Amendments. Hittner also wrote in his ruling that Texas Attorney General Ken Paxton and several other officials cannot enforce the law. His decision also came after he issued two temporary restraining orders to provide more time to announce his final decision.
The American Civil Liberties Union of Texas, which helped represent the plaintiffs in this case, released a statement Tuesday afternoon celebrating the judge’s ruling.
“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,” Chloe Kempf, an attorney at the ACLU of Texas, wrote. “As the court recognized, S.B. 12 is also vague, overbroad, and chills entire genres of performances that are not obscene or inappropriate, from high school Shakespearean plays to the Nutcracker ballet to the Dallas Cowboys cheerleaders.”
Two of the plaintiffs included Brigitte Bandit, an Austin-based drag performer, and Extragrams, a local drag production company. They also put out statements expressing their thanks for the court’s decision.
“I am relieved and grateful for the court’s ruling,” Bandit said. “My livelihood and community has seen enough hatred and harm from our elected officials. This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”
Kerry Lynn, the founder and creative services director of Extragrams, added, “The damage that S.B. 12 has caused is something that we’ll be dealing with the residual effects of for a while. But today, we celebrate being able to move forward continuing to provide arts and entertainment without fear of prosecution.”
In a brief statement to KXAN Tuesday, the Office of the Attorney General said it will appeal the ruling.
Sen. Bryan Hughes, the Mineola Republican who authored SB 12, shared his reaction in a statement.
“Surely we can agree that children should be protected from sexually explicit performances. That’s what Senate Bill 12 is about,” Hughes said. “This is a common sense and completely constitutional law, and we look forward to defending it all the way to the Supreme Court if that’s what it takes.”
Hittner serves on the U.S. District Court for the Southern District of Texas based in Houston. President Ronald Reagan nominated him for the position in 1986.
In a retweet posted on X Tuesday afternoon, Lt. Gov. Dan Patrick wrote, “#SB12, which restricts children from being exposed to drag queen performances, is about protecting young children and families. This story is not over.”
Texas Values, a political advocacy organization, released a statement echoing Patrick’s expectation that there’s more legal action to come.
“This fight is far from over as this ruling will certainly be appealed,” said Jonathan Covey, the organization’s director of policy. “SB 12 would clearly protects kids from hyper-sexualized performances in the state of Texas. Obscenity in front of kids is never appropriate.”
What Senate Bill 12 would do
Gov. Greg Abbott signed SB 12 on June 18 after mostly Republican lawmakers passed the legislation through both chambers during the regular legislative session. However, the bill received significant pushback from advocates for the LGBTQ+ community and others over their concerns about it possibly criminalizing drag performances and venues that host shows in the state.
While the word “drag” is not used in the law, a “sexually oriented performance” is defined broadly in the law to be “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation;” “the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal;” “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals;” “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person;” and “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”
A business owner who hosts such a performance in front of someone younger than 18 could face a fine up to $10,000, while a performer engaged in a sexually oriented performance “on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child” could get charged with a misdemeanor. Additionally, a city or a county “may not authorize a sexually oriented performance,” according to the law.
