Judge Again Rules Texas Drag Performance Law Unconstitutional

Authored by Kimberly Hayek via The Epoch Times,

A federal judge on Tuesday again barred a Texas law that restricts public drag performances, ruling for a second time that the measure violates the U.S. Constitution’s free-speech protections.

U.S. District Judge David Hittner in Houston declared Texas Senate Bill 12 an unconstitutional restriction on speech. He permanently enjoined Attorney General Ken Paxton from enforcing it.

“For those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go,” Hittner wrote in his opinion.

The ruling marks the second time Hittner has found the law in violation of the First Amendment. He granted a restraining order against the legislation in 2023. A Fifth Circuit panel later vacated the injunction in 2025 and remanded the case, allowing the law to take effect while the appeal moved through the courts.

Hittner reconsidered the First Amendment challenges under the Supreme Court’s Moody framework – which provided criteria for determining whether performers’ rights were violated – and the vagueness claims in the context of court precedent. He again found the statute overbroad and unconstitutionally vague.

The amended final judgment, entered Aug. 25, finds Senate Bill 12 violates the First Amendment as incorporated by the 14th Amendment, and immediately and permanently blocks the attorney general from enforcing it.

Senate Bill 12, signed by Gov. Greg Abbott in June 2023, targets “sexually oriented performances,” imposes civil penalties on businesses hosting them when minors are present, authorizes local governments to regulate such shows, and creates Class A misdemeanor criminal penalties for performers of up to a year in jail and a $4,000 fine.

The law bans “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” in public or in venues where people under 18 might see them. It defines a sexually oriented performance as a visual performance featuring a nude performer or one engaging in sexual conduct that appeals to the prurient interest in sex.

Hittner found that performers ranging from Dolly Parton and Elvis Presley to Miley Cyrus could have faced penalties if their acts were viewed as erotic. Accessories and prosthetics that exaggerate sexual characteristics, hip gyrations, or certain clothing and gestures risked triggering the law even in non-obscene contexts such as theater, dance, or impersonation acts, he said.

Paxton, a Republican running for the U.S. Senate, on Wednesday said he plans to appeal the decision.

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

Paxton’s office defended the legislation as a measure to protect children, pledging to exhaust the court system in pursuit of implementing the law.

Opponents said the law was too broad and aimed at LGBT performers.

“Today’s decision confirms that the Legislature’s attempt to ban drag performances was unconstitutional from start to finish,” Brian Klosterboer, senior staff attorney at the ACLU of Texas, which represented the plaintiffs, said in an Aug. 25 statement. “Drag has a rich history as a refuge of joy and liberation for countless Texans, and it’s not going anywhere.”