Federal judge strikes down Texas anti-drag law as unconstitutional

Texas law amounts to unconstitutional restriction on speech in violation of the First Amendment

Alex Woodward
Tuesday 26 September 2023 21:45 BST
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A federal judge has struck down a Texas law targeting drag performances as unconstitutional, a ruling that bars law enforcement officials in the state from enforcing the far-reaching ban.

The ruling from US District Judge David Hittner on 26 September followed a two-day hearing to determine whether to issue a permanent injunction stemming from a lawsuit from a group of drag performers and LGBT+ advocates.

Judge Hittner determined that the law “impermissibly infringes on the First Amendment and chills free speech” and will “irreparably harm” drag performers and LGBT+ groups and venues that host them.

“Not all people will like or condone certain performances. This is no different than a person’s opinion on certain comedy genres or music, but that alone does not strip First Amendment protection,” the judge wrote in a 56-page ruling published on Tuesday.

“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” he added. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level ofFirst Amendment protection.”

The ruling is in stark contrast to a recent decision from US District Judge Matthew Kacsmaryk, who allowed a public Texas university campus prohibition on drag performances to stand despite a wave of federal court decisions striking down drag bans.

A lawsuit taking aim at the state’s sweeping anti-drag law was filed by the American Civil Liberties Union of Texas by a group of drag performers and LGBT+ community groups, arguing 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 “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.

Senate Bill 12 is “vague, overbroad, and chills entire genres of performances that are not obscene or inappropriate, from high school Shakespearean plays to the Nutcracker ballet to the Dallas Cowboys cheerleaders,” ACLU of Texas attorney Chloe Kempf said in a statement.

Drag performer Brigitte Bandit said performers and LGBT+ communities are breathing a sigh of relief after the latest federal court ruling.

“My livelihood and community has seen enough hatred and harm from our elected officials,” she said in a statement. “This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”

Drag performer Indie Cisive is pictured in a Dallas, Texas venue in October 2022

Texas is among several states that have advanced a wave of legislation targeting drag performances and LGBT+ people more broadly, from broad restrictions on classroom speech and school activities aimed at chilling discussion of gender and sexuality, to threats to eliminate healthcare for transgender young people and other laws restricting or outright banning public drag performance, many of which have been blocked in federal courts.

The drag law in Texas sought to ban any performance that could be perceived as “sexual” when a minor is present and on public property. Opponents have warned that the 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.

The “plain reading” of the law, according to the judge, “could virtually ban any performance in public that is deemed to violate” the law.

A decision from Judge Hittman, who was appointed by Ronald Reagan, 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 has also blocked a similar measure citing likely First Amendment violations.

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