A Judge has Blocked, for Now, a Texas Law Drag Show Performers Fear will Shut Them Down

By JUAN A. LOZANO Associated Press

11:29 JST, September 1, 2023

HOUSTON (AP) — A federal judge on Thursday temporarily blocked a new Texas law that drag show artists fear will be used to shut them down or put them in jail.

The law, approved by the Republican-controlled Legislature, would expand the legal definition in the Texas criminal code of what is considered to be an illegal public performance of sexual conduct in front of children. It is part of a broader effort in Texas and other conservative states to crack down on drag shows and limit LGBTQ rights.

Critics argued that the definition is so broad, it could include the Dallas Cowboys cheerleaders.

U.S. District Judge David Hittner in Houston issued the temporary restraining order after a group of drag performers and LGBTQ+ rights advocates sought to keep the law from taking effect on Friday. During a two-day court hearing earlier this week, drag performers and advocates said the new law threatened their livelihoods and would censor their freedom of expression.

In his order, Hittner agreed with those who filed the lawsuit that the new law is likely unconstitutional because it violates their First Amendment rights. Hittner said he issued the temporary restraining order to immediately stop the law while he prepares a more permanent order in the case.

“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,” said Brian Klosterboer, an attorney with the American Civil Liberties Union of Texas, which filed the lawsuit on behalf of the plaintiffs.

The Texas Attorney General’s Office, which represented the state in the lawsuit, said the law was passed “to protect children and uphold public decency.”

“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. The Office of the Attorney General will pursue all legal remedies possible to aggressively defend” the law, said Paige Willey, a spokeswoman for the attorney general’s office.

Gavyn Hardegree, president of Abilene Pride Alliance, one of the lawsuit’s plaintiffs, said Gov. Greg Abbott and his political allies want to use “scare tactics and bigotry to erase LGBTQIA+ identities, especially Black and Brown nonbinary and trans Texans.”

“Our organization works to create a safe space where every person has the freedom to express themselves free from government censorship, no matter our race and gender,” Hardegree said.

The Texas order follows similar rulings against drag performance bans in states including Florida and Tennessee.

On Wednesday, another lawsuit was filed in Tennessee after a local district attorney warned he intended to enforce the state’s law limiting drag shows despite a federal judge’s earlier ruling that the ban was unconstitutional.

The new Texas law on sexual content in performances was promoted as a way of protecting children from seeing drag shows. Republican lawmakers amended it in response to criticism to remove some specific references to drag performances, but the sponsor’s “statement of intent” still cites a need to protect children from seeing drag shows, and the final text broadened the scope of what’s illegal in ways that would also cover many other performances done in front of children.

For example, it defines sexual conduct to include sexual gestures that use “accessories or prosthetics that exaggerate male or female sexual characteristics.” The law also criminalizes real or simulated groping, real or simulated arousal, and the display of a sex toy if done in a “prurient” manner in front of a minor or on public property at a time and place where the performance could reasonably be expected to be viewed by a child.

Violators could face up to a year in jail, and businesses hosting performances deemed illegal could be fined $10,000 for each violation.

Like Texas, Arkansas has a new law regulating adult-oriented performance that doesn’t mention drag specifically but has raised concerns that it would be applied to drag performances. And Montana has a ban in effect that targets drag queen story hours, specifically.

The law’s sponsor wrote that “the bill is not intended to stop theatrical or other similar exhibitions,” even though it explicitly prohibits local governments from authorizing a “sexually oriented performance,” according to its new definition, in the presence of people under 18 years old.

The lawsuit argues that the new law could ensnare television, movies and websites as well as all kinds of performances in addition to drag shows, including touring Broadway plays, karaoke nights, and restaurants staffed by scantily clad servers.