A federal judge in Houston on Thursday temporarily blocked a new Texas law dealing with sexually explicit performances and children, giving a late reprieve to critics who derided the measure as an unconstitutional targeting of drag performers.
Hours before the measure was set to go into effect, U.S. District Court Judge David Hittner issued a temporary restraining order against the law, which creates criminal and civil penalties for those who take part in or host “sexually oriented performances” in front of minors.
The temporary restraining order will last up to 14 days, during which Hittner is expected to decide whether to issue a permanent block on the law known as SB 12.
Hittner, who was appointed by former President Ronald Reagan, said in his five-page order that there is a “substantial likelihood” that the law violates free speech rights and is unconstitutionally vague.
The ACLU of Texas challenged the law earlier this month on behalf of several LGBTQ+ organizations, arguing it amounts to an illegal ban on many public and private drag performances. During a two-day hearing this week, lawyers with the ACLU of Texas argued the language of the new statute is too broad, too vague and violates free speech rights.
The measure, passed by the Republican-led legislature in June, was set to go into effect Friday along with hundreds of other new Texas laws.
“This temporary order is a much-needed reprieve for all Texans, especially our LGBTQIA+ and transgender community, who have been relentlessly targeted by our state legislature,” Brian Klosterboer, a lawyer for the ACLU of Texas, said in a statement Thursday.
The Texas Attorney General’s Office has argued the law does not ban all drag performances, though Texas Gov. Greg Abbott said the bill banned such acts in public after he signed it in June. Lawyers for the state also said in court this week that drag shows are not inherently expressive conduct and, as a result, have no free speech protection under the First Amendment.
“The people of Texas were appalled to learn of an increasing trend of obscene, sexually explicit so-called ‘drag' performances being marketed to families with children,” Paige Willey, director of communications for the Attorney General’s Office, said in a statement Thursday. “The Office of the Attorney General will pursue all legal remedies possible to aggressively defend SB 12, the state law that regulates such performances to protect children and uphold public decency.”
As originally proposed, the bill restricted minors from attending drag shows in Texas. The bill’s authors changed the language after an outcry from LGBTQ+ groups. Critics have still dubbed the bill a “drag ban.”
Under the law, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or engaging in “sexual conduct,” and also appealing to the “prurient interest in sex.”
Those participating in the performance would be charged with a misdemeanor that carries penalties of up to one year in jail and a $4,000 fine.
Sexual conduct is defined under SB 12 as the exhibition of sexual acts and sex toys; contact between one person’s breasts, buttocks or any part of their genitals with another person’s; and gestures using “accessories or prosthetics that exaggerate male or female sexual characteristics.”
Lawyers for the LGBTQ+ organizations argued in court this week that the language related to “accessories and prosthetics” targets drag performers, who routinely wear wigs, makeup, high heels, padding and prosthetic breasts, among other items, in performances that challenge gender assumptions.
Brigitte Bandit, an Austin-based drag performer, testified in court that she frequently performs with prosthetic breasts at adults-only and all-ages drag shows. She fears someone could accuse them of appealing to the “prurient interest in sex,” a phrase that has its roots in obscenity law.
In an effort to establish what could occur during a drag show, lawyers for the state asked the plaintiffs in court this week to demonstrate twerking, or the shaking and thrusting of one’s hips. Another was asked to explain why dollar bills are handed to performers. Dance moves like death drops and body waves were explained.
Municipalities and counties are also banned under the law from authorizing sexually-oriented performances on public property or in the presence of minors.
Texas’ acting attorney general and government officials from Bexar, Montgomery and Travis counties are named as defendants in the suit.
The plaintiffs in the lawsuit include The Woodlands Pride, a nonprofit that has hosted an annual Pride parade and festival on public property in the township since 2018.
Jason Rocha, the group’s president and CEO, testified Monday that drag shows are the festival’s biggest draw and parents routinely bring their children to watch. But with the passage of SB 12, he fears a private citizen who views drag shows as overtly sexual could use the law to file legal complaints against organizers and performers.
In the meantime, Rocha’s organization has planned two Pride festivals for the fall: one that features drag performances and one that does not.
Similar laws restricting drag performances in public have been passed this year in Tennessee, Montana and Florida. However, a federal judge in June found Tennessee’s law unconstitutional. Federal judges in Montana and Florida have temporarily blocked those states’ measures from going into effect.
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