Federal judge allows drag performances for children, striking down Texas law

A federal judge has struck down a Texas law restricting certain drag performances in places where children may be present. US District Judge David Hittner issued the ruling Tuesday, finding that the law was overly broad and could restrict constitutionally protected expression.

The law, which was passed in March 2023, sought to prohibit certain sexually oriented performances on public property or in the presence of individuals under the age of 18. It placed restrictions on performances involving sexualized conduct, including the use of prosthetics.

In his ruling, Hittner cited the broad language used in the law and argued that its definition of conduct appealing to the “prurient interest” could potentially encompass a wide range of otherwise legal performances.

“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” he wrote. “Even if S.B. 12 were somehow content-neutral (an argument the Attorney General has never advanced), it still prohibits huge swaths of constitutionally protected performances. Because the term ‘prurient interest in sex’ is open-ended, SB 12 can be used to cherry-pick particular aspects of performances that might be ‘in some sense erotic’,” Hittner wrote.

He cited Dolly Parton, who died this week, in his ruling, writing that the late singer could be characterized as “a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure.”

“Finally, for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go," he concluded.

The law had previously been blocked by another federal judge before Texas Attorney General Ken Paxton appealed the decision. Following the ruling, Paxton said he would immediately appeal.

“This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” Paxton wrote on X. “I will appeal this decision immediately and continue to fight to protect our kids.”