A federal judge on Tuesday again struck down a Texas law aimed at restricting drag performances, after an appeals court set aside his earlier ruling and allowed the law to take effect.
U.S. District Judge David Hittner permanently blocked Texas Attorney General Ken Paxton from enforcing Senate Bill 12, a 2023 law that restricts certain sexually oriented performances on public property or in front of children.
The ruling marks the latest turn in a three-year legal battle over the law. Hittner first declared it unconstitutional in 2023, before it could take effect. But a federal appeals court overturned that decision last year and sent the case back to Hittner for further review.
That allowed the law to take effect in March while the lawsuit continued.
But on Tuesday, Hittner reached essentially the same conclusion as he did three years ago: The law is written so broadly and vaguely that it could restrict constitutionally protected expression.
“A single moment of eroticism could condemn an entire performance,” Hittner wrote. “There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12.”
SB 12 prohibits businesses from hosting “sexually oriented performance” in front of someone younger than 18. It also prohibits those performances on public property. Businesses can face fines of up to $10,000 for violations, while performers can be charged with a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.
The law doesn’t explicitly mention drag. Instead, it applies to performances that include certain sexual conduct or nudity and “appeal to the prurient interest in sex.” But Hittner found that the law doesn’t adequately explain what that means or give performers and businesses enough guidance to know when they might be breaking the law.
The law, for example, doesn’t define a “visual performance” or “prurient interest in sex,” Hittner wrote.
On Tuesday, Paxton vowed to appeal the ruling, calling it “profoundly flawed” and arguing that it endangers children.
“This is an affront to Texas values,” Paxton said on social media. “I will appeal this decision immediately and continue to fight to protect our kids.”
Brigitte Bandit, an Austin-based drag performer and plaintiff in the lawsuit, said the ruling affirmed drag as a form of protected expression.
“Drag has always been a form of free expression, and it is a relief that the court recognized that,” 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.”
