A federal appeals court has sent a Texas law restricting drag performances back to a lower court for further review, reversing an earlier ruling that had fully blocked the measure. The U.S. 5th Circuit Court of Appeals issued the decision this week involving Senate Bill 12, a law passed in 2023 that aims to prevent what the state describes as sexually explicit performances in front of people under 18.
The law has been at the center of a prolonged legal fight. Civil rights organizations, led by the ACLU of Texas and several LGBTQ-related groups and performance organizations, argued that the measure infringes on constitutional protections of free expression and is broad enough to affect a wide range of artistic and performance-based speech. They said the law could threaten the livelihoods of performers and venues because of uncertainty about what would be considered a violation.
When the case was first heard in federal court in Houston, a district judge placed a temporary halt on the law shortly before it was set to take effect. The following month, the same judge issued a permanent injunction, reasoning that the legislation was vague and could be used to target performances based on viewpoint, rather than clearly defined conduct. The court also found that the law risked sweeping up protected artistic expression since it did not clearly distinguish between adult-oriented content and costumes or performances that are commonly seen in theaters, parades, or other public events.
The panel from the 5th Circuit, however, said that the lower court needed to reconsider the case in light of a recent U.S. Supreme Court ruling, Moody v. NetChoice. That Supreme Court decision dealt with government regulations on social media platforms, but it altered the way courts are expected to evaluate challenges brought under the First Amendment. The appeals judges said the district court’s earlier decision did not take this updated legal framework into account, and therefore must be reviewed again.
In addition to sending the case back, the appeals court directed the lower court to dismiss several defendants, including certain local officials and government entities, and to reexamine the facial challenge to the main portion of SB 12 under the new legal standard.
Supporters of the law, including Texas Attorney General Ken Paxton and the bill’s author in the Legislature, welcomed the appeals court decision and argued that the state has an interest in regulating performances considered inappropriate for minors. Opponents, including the organizations that filed the lawsuit, have long maintained that the law targets drag performers specifically and risks censorship of LGBTQ expression.
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