UPDATED: Federal Court Issues Permanent Injunction Blocking Texas’ Drag Ban

UPDATE: On Tuesday, September 26, 2023, US District Court Judge David Hittner issued a permanent injunction declaring Senate Bill 12, the so-called drag ban law, unconstitutional.

A federal judge in the Southern District of Texas today granted a temporary restraining order blocking the drag ban law, Senate Bill 12, from taking effect September 1 while the court deliberates on a permanent injunction.

Attorneys for the American Civil Liberties Union of Texas and Baker Botts LLP filed the lawsuit earlier this month on behalf of the plaintiffs: The Woodlands Pride; Abilene Pride Alliance; Extragrams, LLC; 360 Queen Entertainment LLC; and drag performer Brigitte Bandit. In court, the plaintiffs testified how S.B. 12 threatens their livelihoods, censors their freedom of expression, and vilifies an art form that has roots going back millennia.

“This law was obviously unconstitutional from the day it was first proposed, and we are grateful that the court has temporarily blocked it,” said Brian Klosterboer (he/him), attorney at ACLU of Texas. “Senate Bill 12 is vague, overbroad, and censors free expression. If allowed to take effect, S.B. 12 will make our state less free, less fair, and less welcoming for every artist and performer. This temporary order is a much-needed reprieve for all Texans, especially our LGBTQIA+ and transgender community, who have been relentlessly targeted by our state legislature.”

S.B. 12 bans any performance that could be perceived as “sexual” when a minor is present and on public property, and the law proposes criminal penalties, including up to a year in jail, for artists, business owners, and others accused of violating it.

The ACLU of Texas and Baker Botts LLP argued the law is unconstitutional and violates the First and Fourteenth Amendments because it’s written in a way that would have allowed a large number of constitutionally protected performances, from touring Broadway plays and professional cheerleading routines to karaoke nights and drag shows, to be censored.

“I am honored to serve as co-counsel alongside the ACLU of Texas in defending the constitutional rights of drag performers and their patrons,” said Brandt Thomas Roessler (he/him), senior associate at Baker Botts LLP. “Baker Botts has a long-standing commitment to pro bono work, including the advocacy of LGBTQIA+ civil rights.”

“Drag has always been a form of free expression,” said Brigitte Bandit (she/they), drag performer. “We use our performances to assert liberation, power, and joy with our community. As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community. No one should be punished for performing drag, and I wish lawmakers would take steps to protect kids from real dangers in our state instead of trying to divide and marginalize us.”

“Our company had a performance last weekend that we imagined might be our final show, but the court’s ruling gives us hope that we may again have spaces where our LGBTQIA+ community and allies can both perform and enjoy drag,” said Richard Montez (he/him), co-owner of 360 Queen Entertainment. “I never imagined that we would need to go to federal court to stand up for our performers, customers, and community, or that the Texas Attorney General’s Office would request I demonstrate twerking in the courtroom. LGBTQIA+ Texans, including queer and trans Texans of color, belong in this state. Drag performances allow us to celebrate and provide economic support to our community. We are asking the court to permanently stop S.B. 12 from stripping away our joy, freedom, and business.”

“It is inappropriate for the state to paint drag as ‘adult content’ when drag is as varied as theater and movies and can be for audiences of all ages,” said Jason Rocha (he/him), president of The Woodlands Pride. “If people do not like drag, no one is forcing them to watch it. This temporary decision gives us hope that the court will allow LGBTQIA+ Texans to keep expressing ourselves and supporting each other through drag shows and Pride festivals.”

“We thank the court for carefully considering how this law targets free expression and threatens to banish LGBTQIA+ artistry from public life,” said Gavyn Hardegree (they/them), president of Abilene Pride Alliance. “Gov. Abbott and his political allies want to use scare tactics and bigotry to erase LGBTQIA+ identities, especially Black and Brown nonbinary and trans Texans. Our organization works to create a safe space where every person has the freedom to express themselves free from government censorship, no matter our race and gender.”

“Drag events have increasingly been targeted and threatened here in Texas,” said Kerry Lynn (she/her), founder and creative services director of Extragrams. “The restrictions that S.B. 12 threatens to impose on us will decimate small businesses like ours across the state and cost local economies millions of dollars by deterring artists who perform in music festivals, concerts, and touring plays to skip the state to avoid defying the law if their performance was arbitrarily deemed ‘sexual’. Nobody should face intimidation or violence for hosting, performing in, or supporting an event that celebrates drag.”

“Texans have real problems that need real solutions,” said Ricardo Martinez (he/him), CEO at Equality Texas. “Lawmakers’ obsession with an art form they don’t understand, animus against a business owner they’ve never met, and fear of a community that just wants to be left alone isn’t solving any problems. If you don’t like drag, stay home.”

“Drag can be a source of healing for those who observe and those who participate,” said Verniss McFarland III (she/they), founder and executive director of The Mahogany Project. “Drag provides economic opportunities and a creative outlet to those who have endured life’s adversities, systematic oppression, and denial of our nation’s inalienable rights. Drag is also about reducing harm, preventing suicide, and preserving art. Drag offers a sustainable source of income for many LGBTQIA+ Texans as performers and small business owners. The truth is that drag is so many different things to so many different people. To take something away that manifests itself in the lives of many Texans in various ways could cause us unanticipated economic and personal damage.”

“The goal of this law is to chip away at our freedoms and eventually erase queer and trans existence from the public sphere,” said Andrea Segovia (she/her), senior field and policy advisor with Transgender Education Network of Texas (TENT). “Our community and our art will not be silenced or erased. Our community has fought too long to exist to let a drag ban stop us from challenging gender norms, celebrating our identities, and preserving queer culture. We applaud the tenacity and grit of the suit’s plaintiffs. The plaintiffs of this case demonstrate true Texas values by standing strong for queer and trans rights. We’re supporting them every step along the way.”