A national children’s advocacy organization has asked a federal appeals court to continue blocking a Texas law restricting drag and other performances in front of minors.
The Children’s Defense Fund argues in an amicus brief filed last week in the Fifth Circuit Court of Appeals that the law, Senate Bill 12, is an unconstitutional attempt to thwart free speech and expression which could be valuable for nonbinary and LGBTQ+ youth.
“SB12 would impermissibly restrict the rights of minors to view constitutionally protected expression that is affirming and beneficial to them, thereby negatively impacting youth rather than protecting them,” the brief states.
The law was authored by state Sen. Bryan Hughes, R-Mineola, and passed last year as part of a package of what opponents called “culture war” issues championed by Texas Republicans.
But a lawsuit successfully halted the legislation after a September ruling from federal district Judge David Hittner. He said the law was unconstitutional and a violation of free speech laws.
The lawsuit was brought by Bandit, The Woodlands Pride, Inc., Abilene Pride Alliance, Extragrams LLC and 360 Queen Entertainment LLC.
Texas Attorney General Ken Paxton appealed the ruling to the Fifth Circuit Court of Appeals, considered one of the most conservative of the country’s circuit courts.
The Children’s Defense Fund is recognized as an organization that promotes equitable health care and education for children and seeks to keep children out of poverty. Thomas Harvey, the CDF’s national litigation strategist, told The Texas Newsroom the group’s opposition to SB 12 came from the belief that certain performances celebrating self-expression are beneficial to marginalized youth, especially among communities of color.
“This is … perhaps a slightly more narrow portion of that fight, but nonetheless a very important portion,” he said. “We're very concerned about youths' ability to experience just sort of happiness and play and joy. And drag shows can be a source of that.”
What’s in Senate Bill 12
The legislation bans performances that appeal “to the prurient interest in sex” or feature nude performers or any other sexual conduct, including “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” when minors are present.
The initial version of the bill sparked controversy for specifically targeting drag performances — its definition of a sexually oriented performance included “a male performer exhibiting as a female or a female performer exhibiting as a male” using makeup, clothing or other tools.
While the bill was modified before passage to exclude some of those provisions, opponents of SB 12 say it still targets drag shows. They point to a statement from Lt. Gov. Dan Patrick in May — when the Texas House and Senate agreed on the bill’s final language — where Patrick celebrated the law as pushing back “against the radical left’s disgusting drag performances which harm Texas children.”
“It is shocking to me that any parent would allow their young child to be sexualized by drag shows,” Patrick added.
Harvey of CDF said he doesn’t think that’s an accurate characterization.
“I find it hard to imagine someone making a good faith argument that performing drag shows are sexually explicit and that there's any sense in which they're being used to groom children,” Harvey told The Texas Newsroom.
When asked about the language in the bill about “the exhibition of sexual gesticulations” and “using accessories or prosthetics that exaggerate male or female sexual characteristics,” Harvey said those aren’t commonly associated with the drag shows that children attend.
“I think it's talking about a kind of … a fantastical version of these shows that largely doesn't exist,” he said.
It’s unclear when the appeals court will issue a decision, but proponents of the bill have said they’re prepared to take the matter to the U.S. Supreme Court if necessary.
State Sen. Matt Shaheen, R-Plano, is the House sponsor of the bill. After Hittner’s decision, he said the judge made the wrong call.
“This is not debatable. We are not going to allow children to be sexualized in the State of Texas,” he told CBS News in September.