Federal judge says Texas drag ban is unconstitutional, cannot be enforced

The state law banning certain public drag performances is unconstitutional and violates the First Amendment, said a federal judge in the Southern District of Texas late last month.

U.S. District Judge David Hittner issued a permanent injunction on Sept. 26, preventing any Texas government officials from enforcing Senate Bill 12. Authored by Sen. Bryan Hughes, SB 12 restricts “sexually oriented performances” — defined to include drag performances — in public areas.

Hughes did not respond to requests for comment.

The court decision comes after the American Civil Liberties Union of Texas and Baker Botts LLP filed a lawsuit in August on behalf of five plaintiffs arguing the legislation threatens the livelihood and free expression of drag performers and the broader LGBTQ+ community. The plaintiffs included The Woodlands Pride, Abilene Pride Alliance, Extragrams LLC, 360 Queen Entertainment LLC and Austin-based drag performer Brigitte Bandit.

Bandit, who primarily performs at local LGBTQ+ bars like Coconut Club, Cheer Up Charlies and Oilcan Harry’s, said when she heard about the judge’s ruling, she cried for the rest of the day.

“We have this win,” Bandit said. “I’m going to be thankful for what’s happening right now, (and) I’m going to be aware of the future and what we need to do to continue advocating for our community beyond this.”

Before issuing the permanent injunction, the court issued a temporary restraining order against the legislation at the end of August, preventing the law from taking effect on Sept. 1.

According to the ruling, Hittner found the legislation’s language is unconstitutionally overbroad and vague, saying the ban “impermissibly infringes on the First Amendment and chills free speech.”

“As the court recognized, SB 12 is also 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 press release.

Bandit said every step of her fight against SB 12 felt horrible. When she tried to testify before the state Senate earlier this spring, Bandit said she and other community members speaking against the bill were not taken seriously.

“The relief of seeing somebody just push back on these people was like, ‘Okay, I think that we’re in much better hands than where we have been,’” Bandit said.

Iggy Bank, another local drag performer, said she first learned about the legislation from drag activists like Bandit who were spreading awareness within the community. Bank said watching her first drag show in Laredo, Texas taught her a lot about love and safety within LGBTQ+ communities. It was the first time she felt like she was truly in an LGBTQ+ space, she said.

“We are just older queer people,” Bank said. “We are here to educate the younger crowd and be like ‘Hey, you’re going to be fine, you’re going to be safe. Don’t worry, there are people looking out for you.’”

Texas Attorney General Ken Paxton is expected to appeal the ruling, meaning the case could be reviewed in higher courts. However, activists like Bandit and Bank remain hopeful that free expression is strong enough to combat the state’s efforts.

“It’s kind of like playing a game of chess,” Bank said. “You have to be three moves ahead (of) where they’re trying to go and what they’re trying to do so you can stop them.”