Federal judge blocks Texas drag ban hours before taking effect

LGBT+ advocates filed lawsuit over constitutional violations in the ‘sweepingly overbroad and vague’ state law

Alex Woodward
Thursday 31 August 2023 23:31 BST
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One day before it was scheduled to go into effect, a federal judge in Texas has temporarily blocked a far-reaching ban on “sexually oriented” public performances that opponents warned would criminalize drag and a wide range of events.

US District Judge David Hittman granted a temporary restraining order that blocks the state from enforcing the law after a group of drag artists and LGBT+ advocates filed a lawsuit earlier this month.

An order on 31 August from the 84-year-old judge appointed by Ronald Reagan argues that the law amounts to a likely unconstitutional violation of the First Amendment.

The lawsuit filed by the American Civil Liberties Union argues that the state’s ban is “so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity,” from ballet and touring Broadway productions to cheerleading.

The state’s “sweepingly overbroad and vague” statute threatens the livelihoods and constitutional rights of drag performers for any performance perceived as “sexual,” according to plaintiffs. They could face up to a year of jail and fines up to $10,000 under the law.

While the broad language in the Texas law could encompass many types of performance, state lawmakers and Governor Greg Abbott made the bill’s purpose clear before he signed it into law in June.

“Texas Governor Signs Law Banning Drag Performances in Public. That’s right,” the governor wrote that month.

Legislative debate also largely revolved around the conflation of all drag performance with drag queen story hours, with baseless smears accusing performers of “grooming” children.

Senate Bill 12 is “vague, overbroad, and censors free expression,” making the state “less free, less fair, and less welcoming for every artist and performer,” ACLU of Texas attorney Brian Klosterboer said in a statement on Thursday.

The law bans any performance that could be perceived as “sexual” when a minor is present and on public property. Opponents have warned that the Texas law and a rush of similar proposals across the US within the last year could be used to target and criminalize transgender and gender nonconforming people in public as part of a broader effort among Republican officials to chill, restrict and erase LBGT+ identities.

“No one should be punished for performing drag, and I wish lawmakers would take steps to protect kids from real dangers in our state instead of trying to divide and marginalize us,” drag performer and plaintiff Brigitte Bandit said in a statement. “As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community.”

The judge’s order follows several recent federal court decisions striking down similar laws in other states, including a federal judge’s decision to temporarily block a similarly sweeping Montana law.

In that case, US District Judge Brian Morris argued that Montana’s law will “disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms,” including transgender and Two-Spirit people.

“Constitutional violations, moreover, never serve the public interest,” he added.

In Tennessee, a federal judge temporarily blocked a measure that restricts public drag performances, similarly arguing that the law likely violates the First Amendment rights of performers. A federal judge in Florida blocked a similar measure citing likely First Amendment violations.

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