The Controversial Senate Bill 12

Senate Bill 12, put into effect in 2023, was designed to ban drag performers from conducting certain acts in public spaces or in the presence of minors. It specifically prohibits suggestive dancing and the use of certain prosthetics during performances. Under this law, business owners who host such drag shows could face fines of up to $10,000, while performers could be charged with a Class A misdemeanor if found in violation.

Appeals Court Ruling Details

A three-judge panel from the Fifth U.S. Circuit Court of Appeals reversed a prior district court decision on Thursday, further stating that most plaintiffs, including a drag performer and various pride organizations, did not demonstrate that they were at risk of harm from the law. The court concluded that their performances were not categorized as “sexually oriented,” thus limiting the law’s impact on them.

The ruling explicitly mentioned that not all drag shows should be considered sexually explicit, thereby suggesting that many performances could continue without restriction under the new legislation.

Previous Court Decisions

Earlier in September 2023, U.S. District Judge David Hittner determined that the law was unconstitutional, pointing out that it “impermissibly infringes on the First Amendment.” Hittner posited that the law could potentially affect various cultural activities such as live theater and dance performances.

Critics of the legislation have contended that Republican lawmakers are attempting to categorize all drag shows as sexually explicit, targeting performances across Texas and several other states.

What Does the Ruling Specify?

The court’s opinion highlighted specific examples from a drag production company to illustrate its decision. It noted behaviors that could arguably be labeled as sexually explicit, wherein performers interacted closely with audience members and wore revealing clothing. The ruling quoted testimony about performers sitting on patrons’ laps and utilizing provocative gestures while engaging with their audience.

Judge Kurt Engelhardt expressed concerns about whether such actions could be considered “constitutionally protected,” especially in front of minors, indicating a challenging legal landscape for drag performers.

Opposing this view, Judge James Dennis dissented, arguing that Engelhardt’s comments conflicted with established First Amendment protections and risked misrepresentation in future court proceedings.

The Road Ahead for Texas

Following the appeals court decision, the case returns to the district court to assess components related to the Texas attorney general’s role in the law’s enforcement. Texas Attorney General Ken Paxton hailed the ruling, reaffirming his commitment to shielding children from what he described as inappropriate performances. He expressed his intent to advocate for the law’s validity as it continues to navigate through the legal system.

Reactions from the LGBTQIA+ Community

The decision has been met with disappointment from the plaintiffs and advocacy groups, including the ACLU of Texas, who voiced their determination to combat the ruling. They characterized the outcome as “heartbreaking,” asserting that they would persist in their battle against the law, which they believe violates the First Amendment rights of drag artists and the LGBTQIA+ community.

In a joint statement, the advocates declared, “We are devastated by this setback, but we are not defeated. Together, we will keep advocating for a Texas where everyone – including drag artists and LGBTQIA+ people – can live freely, authentically, and without fear.”

They underscored the importance of protecting artistic expression, emphasizing their resolve to challenge the constitutionality of the law until it is overturned.