Fifth Circuit upholds Texas drag show ban

NEW ORLEANS, La. (CN) — A three-judge panel of the Fifth Circuit vacated on Thursday a 2023 injunction that blocked Texas from enforcing its ban on drag shows.

Texas passed Senate Bill 12 in 2023, a law that would ban businesses from hosting a “sexually oriented performance to be presented on the premises in the presence of an individual younger than 18 years of age.”

But before the law could take effect, LGBTQ advocacy groups and drag show production companies sued to block the law’s enforcement. And U.S. District Court Judge David Hittner, a Ronald Reagan appointee in the Southern District of Texas, sided with them in his September 2023 decision permanently enjoining Texas from enforcing the law.

U.S. Circuit Judge Kurt Engelhardt, a Donald Trump appointee, instructed the federal court in his majority opinion Thursday to dismiss the claims against all of the defendants except Texas Attorney General Ken Paxton for lack of standing.

While they could still sue Paxton to challenge the law, Engelhardt argued, the drag performers could not sue to stop the counties they sought to perform in because their performances would not be considered the kind of “sexually oriented performance” that S.B. 12 applies to.

Engelhardt concluded that Woodland Pride, one of the organizing nonprofits, didn’t have standing because the conduct it testified to — like handing out condoms and lubricant, STD testing performers or even performers touching each other — is not the kind of sexual conduct the law proscribes.

“None of the trial evidence indicates that the performances are ‘in some sense erotic.’ Because Woodlands Pride does not intend to engage in conduct that is arguably proscribed by S.B. 12, it does not have standing to seek an injunction against any of the appellants,” he said.

Engelhardt echoed this for the other plaintiffs, finding that because the performances at these festivals are knowingly constrained to not include explicit sexual conduct in the presence of minors, their shows would not be affected by S.B. 12.

Engelhardt also found that Hittner had not conducted the required legal analysis for whether the law would unconstitutionally violate the businesses’ and performers’ First Amendment rights to free speech.

Engelhardt did note that the 2024 Supreme Court ruling he cited for that argument did not occur until the year after Hittner’s ruling. But he still uses that as reason enough to vacate Hittner’s decision and send the case back down for rehearing.

U.S. Circuit Judge James L. Dennis, a Bill Clinton appointee, agreed with Engelhardt that remanding the decision back to the lower court would be proper in light of the Supreme Court’s new framework. But Dennis firmly dissented on much of Engelhardt’s reasoning for denying most of the plaintiffs’ legal standing.

“I begin with what the majority ignores: S.B. 12’s legislative history. While S.B. 12 does not on its face purport to ban ‘drag performances’ by name, even a cursory view of the law’s legislative history reveals several indicia that this was undoubtedly the legislature’s intent," he wrote.

Engelhardt put a footnote early in his opinion stating that the Texas law does not include the word “drag” anywhere in its ban. But Dennis retorted that at least three key figures in the bill’s process all clearly identified the bill as targeting drag shows: Lieutenant Governor Dan Patrick, in making a drag show ban one of his priorities for the 2023 legislative session; State Senator Bryan Hughes in introducing the bill; and Governor Greg Abbott in his comments upon signing the bill.

The language in the bill specifically calling out drag shows was removed late in the 2023 session just before the bill’s passage.

Dennis noted that performers often wore wigs and prosthetic breastplates, and performances often included choreography exaggerating sexual charateristics.

“When viewed in context, the combination of simulated anatomy, expressive movement, and costuming arguably amount to ‘the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics,’" citing the first part of S.B. 12’s definition of a sexually oriented performance," he wrote, saying that this should give the plaintiffs standing.

Dennis also rejected Engelhardt’s remark that there could be any “genuine doubt” whether the drag performances in question are protected by the First Amendment. Dennis found that the history of First Amendment cases in the past several decades — covering issues from theater, satire and nude performance to flag burning and black armbands as political protest — should lead to the opposite conclusion.

“Drag — a costumed, choreographed, and frequently parodic performance that speaks in the idiom of gender — plainly participates in that protected tradition. The majority’s effort to collapse an entire art form into a few salacious acts turns these principles on their head," he wrote.

Though U.S. Circuit Judge Leslie Southwick joined Engelhardt in the majority of this case, in a separate case over West Texas A&M University’s campus drag show ban, the George W. Bush appointee had ruled the ban violated the First Amendment rights of the A&M student group that wanted to host a drag show on campus.

Dennis had voted alongside Southwick in that case. Dennis also cites that decision from Southwick towards the end of his dissent in this case.

Paxton praised the majority decision in a Thursday statement: “I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances. It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”