Court says Texas can ban drag shows for kids

An appeals court has ruled that Texas is allowed to enforce its law banning "sexually oriented performances" in the presence of minors, overturning a lower court’s injunction that blocked the law. Those in the drag industry sued over the law, claiming that it violates the First Amendment.

The US Court of Appeals for the Fifth Circuit wrote that Texas Senate Bill 12 defines a "sexually oriented performance" as a "visual performance" that "(1) features a performer who 'is nude’ or 'engages in sexual conduct,’ and (2) 'appeals to the prurient interest in sex.’"

The court ruled that the plaintiffs in the case had not proven that they would be impacted by the law. Judge Kurt Engelhardt wrote of plaintiffs Woodlands Price, "None of the Woodlands Pride conduct introduced at trial arguably amounts to a ‘sexually oriented performance. 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." The same was said of plaintiff Abilene Pride. The ruling said that plaintiff 360 Queen Entertainment, a drag production company, did have standing to seek an injunction against Texas Attorney General Ken Paxton.

"Because the plaintiffs only have standing to assert their claims against the Attorney General, and the Attorney General only has the authority to enforce Section One, the sole remaining issue on appeal is whether the plaintiffs have established that Section One, on its face, violates the First Amendment," the court stated.

The court stated that the relevant analysis determining whether the law on its face violates the Free Speech Clause of the First Amendment. "The district court did not conduct this analysis, nor did the parties brief the proper standard or adequately develop the record. 11 Consequently, we are unequipped to undertake this task in the first instance, and remand for the district court to do so."

Paxton’s office said in a statement, "At the Attorney General’s urging, the Fifth Circuit rightfully expressed 'genuine doubt' regarding plaintiffs’ argument that they had a First Amendment right to stage graphic, sexually explicit performances in front of children."

“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” said Attorney General Paxton. “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.”

Woodlands Pride v Paxton ruling by Hannah Nightingale