A drag performer, drag production groups and LGBT+ advocacy organisations in Texas are suing the state over a far-reaching ban on “sexually oriented” public performances that not only includes drag but could also be used to target a wide range of events.
The lawsuit, filed by the American Civil Liberties Union of Texas, argues that the state’s ban is “so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity,” from ballet and touring Broadway productions to cheerleading.
By enacting the law, set to take effect on 1 September, the state’s “sweepingly overbroad and vague” statute now threatens the livelihoods and constitutional rights of drag performers for any performance perceived as “sexual,” according to plaintiffs. They could face up to a year of jail and fines up to $10,000.
Drag performer Brigitte Bandit, who went viral earlier this year during testimony against the bill at the state capitol in a pink wig and dress, said Texas drag queens and kings have faced threats and misinformation as a result of the law.
“We must reject their attempts to divide us and continue to come together in our truth and power to support each other as Texans should,” she said in a statement accompanying the complaint. “Our community will not be used as a scapegoat or a distraction by politicians who do not know who we are or what we do. State leaders should focus on legitimate issues, not political stunts.”
Brian Klosterboer, attorney at the ACLU of Texas, warned that the “stunningly broad” law could chill “entire genres of free expression in our state”.
“This law flies in the face of the First Amendment. No performer should ever be thrown in jail because the government disfavors their speech, and we are asking the Court to block this affront to every Texan’s constitutional rights,” he said.
Plaintiffs also include The Woodlands Pride and Abilene Pride Alliance, as well as drag production groups Extragrams LLC and 360 Queen Entertainment LLC.
“Censoring drag is censoring free speech,” said Jason Rocha, president at The Woodlands Pride. “The Woodlands Pride formed to help amplify the voices and representation of all, specifically the LGBTQIA+ community. Drag is a symbol of expression, and the freedom to express yourself is quintessential to human nature. We know this ban is aimed specifically at our community. Our freedoms to exist, express, and speak are at stake.”
While the broad language in the Texas bill could encompass many types of performance, state lawmakers and Governor Greg Abbott made the bill’s purpose clear before he signed it into law in June.
“Texas Governor Signs Law Banning Drag Performances in Public. That’s right,” the governor wrote that month. Legislative debate also largely revolved around the conflation of all drag performance with drag queen story hours, with baseless smears accusing performers of “grooming” children.
The measure was initially written to explicitly outlaw public drag performance, specifically any instances involving a “male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.”
Senate Bill 12 now defines “sexually oriented performance” more broadly as the “exhibition or representation” of “actual or simulated” sexual acts; “male or female genitals in a lewd state”; a “device designed and marketed as useful primarily for the sexual stimulation of male or female genitals”; “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person”; and “sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics”.
Those “accessories or prosthetics” – from wigs and heels to bodysuits – are often used by drag performers, and “actual or simulated” sex acts could be broadly construed to include dancing or any other actions performed by a drag artist, the lawsuit argues.
Civil rights groups and LGBT+ advocates across the US have warned the Texas law and similar bans in other states unconstitutionally single out drag performance with language that threatens First and 14th amendment protections, as part of what critics argue is a coordinated effort among Republican officials and anti-LGBT+ state lawmakers to limit or erase LGBT+ people from public life. Opponents also fear that such laws could be selectively enforced to criminalize transgender and nonbinary people.
But the lawsuit follows several recent federal court orders striking down similar laws in other states, including a federal judge’s decision to temporarily block a sweeping Montana law that he warned was likely unconstitutional.
In that case, US District Judge Brian Morris argued that Montana’s law will “disproportionately harm not only drag performers, but any person who falls outside traditional gender and identity norms,” including transgender and Two-Spirit people.
“Constitutional violations, moreover, never serve the public interest,” he added.
In Tennessee, a federal judge temporarily blocked a measure that restricts public drag performances, similarly arguing that the law likely violates the First Amendment rights of performers. And a federal judge in Florida blocked a similar measure citing likely First Amendment violations.
