A Federal Judge Just Struck Down Texas' Anti-Drag Law, Again

In a fitting send-off to Tim Curry, a federal judge has struck down a Texas law restricting drag shows.

On Tuesday, Judge David Hittner of the U.S. District Court for the Southern District of Texas ruled that a 2023 state law banning “sexually oriented performances” in the presence of minors violated the First Amendment.

Before the ruling, businesses found hosting an event in violation of this law would have faced a fine of up to $10,000. Performers could be charged with a Class A misdemeanor, the most serious misdemeanor charge in Texas, which could result in a $4,000 fine, a year in jail, or both.

The district court ruled that the law’s definitions are far too broad, finding that it could cover “countless exhibitions and events with an audience, including sports matches, cheerleading and dance contests, karaoke, musicals, art exhibitions, dressing in potentially provocative costumes at comic book conventions, ballet, and more.”

The ruling also states that, because the law does not specify who is responsible for determining whether a performance “appeals to the prurient interest…a single moment of eroticism could condemn an entire performance to criminal or civil penalties.”

The ruling cites Dolly Parton “as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure,” Elvis Presley’s “signature hip gyrations” as a “display of male sexuality,” and Miley Cyrus’s “twerking” during the 2013 MTV Video Music Awards as examples of performances that contain “erotic” elements that could be subject to criminal penalties under this law.

Tuesday’s ruling is the culmination of a yearslong legal battle that began in 2023 when the American Civil Liberties Union of Texas and Baker Botts LLP filed a lawsuit on behalf of drag companies, LGBTQ groups, and an Austin-based drag queen named Brigitte Bandit, challenging the law. As reported by Reason at the time, the district court declared the law unconstitutionally overbroad that year. However, more than two years later, the 5th Circuit Court of Appeals ruled that the law could still be enforced and sent the case back to the district court, allowing the law to come into effect last year.

Texas is among several states that have passed legislation to restrict drag shows, only for these laws to be repealed in court. In 2023, federal judges struck down anti-drag laws in Tennessee and Florida on First Amendment grounds. In the case of Florida, whose anti-drag law was touted as a way to protect children from supposedly harmful live performances, District Judge Gregory Presnell ruled the state’s law was “specifically designed to suppress the speech of drag queen performers.”

Similarly, in Montana, a federal judge blocked the implementation of House Bill 359 in 2023. The injunction was upheld by the Court of Appeals for the 9th Circuit earlier this year. The law aimed to prohibit “drag story hours” and “sexually oriented performances” in various locations, but the court found that it had discouraged the plaintiffs—including drag performers and LGBTQ groups—from exercising protected speech because they feared prosecution. The court concluded that it had “chilled their speech and subjected them to a reasonable fear of prosecution for engaging in protected speech and expression.” Judge Brian Morris concluded that there was “no evidence before the Court to indicate that limiting children’s exposure to speech and expression critical of gender norms or by gender non-conforming people bears any relationship to promoting children’s welfare.”

Hittner on Tuesday echoed a similar sentiment: “For those who find such activities as described in this case offensive, the solution is relatively simple…just don’t go.”

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