U.S. District Judge David Hittner has issued a temporary restraining order blocking a new Texas state law, Senate Bill 12 (SB 12), from going into effect. This law, signed by Governor Greg Abbott in June, aimed to criminalize sexually-oriented performances in front of children and had the potential to effectively ban some public drag shows. LGBTQ+ groups filed lawsuits against the Texas attorney general’s office to prevent the enforcement of SB 12, arguing that it violated their First Amendment rights to perform and organize drag shows.
In a two-day hearing held in Houston, drag performers, entertainment businesses, and LGBTQ+ groups presented their case, contending that the law was unconstitutional and an infringement on their freedom of expression. Judge Hittner did not issue a final order but found the plaintiffs’ arguments compelling. He stated that there was a substantial likelihood that SB 12, as drafted, violated the First Amendment of the U.S. Constitution under one or more legal theories presented by the plaintiffs.
Judge Hittner believed that allowing SB 12 to take effect would likely cause “irreparable harm” to the plaintiffs, so he issued a temporary restraining order to maintain the current legal landscape while preparing a final decision. It’s important to note that this restraining order does not guarantee a permanent injunction, and a final decision is expected to come two to four weeks after the hearing.
The plaintiffs argued that SB 12 would make the state less welcoming and that drag shows had historical connections to LGBTQ+ people, describing drag as a form of healing, expressive, and political performance art.
On the other side, attorneys from the Texas attorney general’s office defended the law, stating that it was narrowly tailored to protect children from sexually-explicit performances and did not explicitly ban drag shows. They argued that drag performances should not be considered expressive and should not receive First Amendment protections.
Under SB 12, business owners could have faced a $10,000 fine for hosting sexually explicit performances involving nudity or appeals to the “prurient interest in sex,” while performers caught violating the law could have been charged with a Class A misdemeanor, carrying a maximum penalty of one year in jail and a $4,000 fine.
Texas is one of six states that have passed bills restricting “adult” or drag performances, but legal challenges have blocked similar legislation in Florida, Montana, and Tennessee. In June, a federal judge in Tennessee ruled that a similar law in that state was unconstitutional in its attempt to suppress First Amendment-protected speech.