An appellate court found on Wednesday that Texas can enforce a law regulating drag shows in public places and in the presence of minors, scrapping a lower court order that had enjoined the state from doing so.
A panel of the U.S. Court of Appeals for the 5th Circuit reaffirmed its November ruling, saying Texas can enforce the 2023 law regulating “sexually oriented performances.” The two-judge panel said only one plaintiff in the case had standing and sent the lawsuit back to the lower court to reevaluate the plaintiff’s First Amendment claim.
Texas Attorney General Ken Paxton, who is a candidate for Senate, framed the decision as a “major win” in a statement on social media.
“I successfully defended a law protecting children from being exposed to sexually illicit content at erotic drag shows,” Paxton said. “I will always work to shield our kids from exposure to erotic and inappropriate sexually oriented performances.”
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The lawsuit, brought by numerous self-described LGBTQ organizations, centered on a state Senate bill that defined sexually oriented performances as visual performances that feature a nude person or sexual conduct and “[appeal] to the prurient interest in sex.” Under the law, a person could be prosecuted for causing a performance to occur in the presence of minors.
Judge Kurt Engelhardt, an appointee of President Donald Trump, authored the opinion and was joined by Judge Leslie Southwick, an appointee of former President George W. Bush.
The judges found that most of the plaintiffs, including a nonprofit called Woodlands Pride, did not have standing to bring First and Fourteenth Amendment challenges to the law because the groups’ performances were benign and therefore did not fall under the Texas law.
The judges said, however, that a group called 360 Queen Entertainment did engage in performances, sometimes in the presence of minors, and therefore had standing.
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“Based on the evidence introduced at trial, 360 Queen’s performances arguably include proscribed conduct,” Engelhardt wrote. “The owner described one performance where a drag queen, who was wearing a ‘very revealing’ breastplate, pulsed the breastplate in front of people and put the breastplate in people’s faces.”
Sometimes those performances were visible to children, Engelhardt noted.
The panel ordered the district court to evaluate whether 360 Queen was right to claim the Texas law violated its free speech rights under the First Amendment.
In a statement, Brian Klosterboer of the American Civil Liberties Union of Texas said the 5th Circuit effectively deemed some drag performances “family-friendly” but that the law, which will go into effect in March, still had perceived constitutional problems.
“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” Klosterboer said.
In 2023, Judge David Hittner, an appointee of President Ronald Reagan, found Texas’ law was unconstitutional. It is “not unreasonable” to think it could affect activities like live theater or dancing, Hittner found.
Last November, the 5th Circuit vacated that order. On Wednesday, it reaffirmed that decision and denied the plaintiffs’ request to rehear their appeal.
