A Texas law restricting certain public drag performances officially went into effect on Wednesday after a federal appeals court reaffirmed it earlier this year. Senate Bill 12 (SB 12) prohibits drag performers from dancing suggestively or wearing particular prosthetics in public spaces or in front of children. Business owners who host prohibited events face fines of up to $10,000, while performers could face charges of a Class A misdemeanor.
The law has faced legal challenges since its inception. In September 2023, U.S. District Judge David Hittner ruled SB 12 unconstitutional, stating that it “impermissibly infringes on the First Amendment” and that it could affect a wide range of activities, including live theater and dance. However, in November, a three-judge panel of the 5th U.S. Circuit Court of Appeals unblocked the law and sent the case back to the district court.
The appeals court issued a revised ruling in February, largely mirroring its November decision, and denied the plaintiffs’ request for a rehearing. The decision established March 18 as the date for SB 12 to be enforced.
The ruling clarified that most of the plaintiffs—a drag performer, a drag production company, and several pride organizations—had not demonstrated an intention to conduct “sexually oriented performances.” According to the panel, this distinction means that many drag shows are not inherently sexually explicit and therefore not prohibited under the law.
SB 12 defines a sexually oriented performance as one in which a performer is nude or engages in sexual conduct, including “actual contact or simulated contact” with another person’s genitals, buttocks, or breasts, and which appeals to the “prurient interest in sex.” The appeals court noted that performances such as twerking or accidental physical contact during hugs do not meet this threshold.
The panel did identify some potentially sexually explicit conduct in performances by a particular drag production company. According to court records, performers at one show wore revealing prosthetics, sat on audience members’ laps while wearing thongs, and invited audience interaction that could be considered sexual. Judge Kurt Engelhardt, a Trump appointee, expressed doubts that these specific actions are constitutionally protected, particularly in the presence of minors. Judge James Dennis, a Clinton appointee, disagreed, warning that the commentary could mislead the district court regarding First Amendment protections.
Attorney General Ken Paxton praised the appeals court ruling, emphasizing the state’s commitment to shielding children from “erotic and inappropriate sexually oriented performances.” Meanwhile, the plaintiffs and the ACLU of Texas maintained that family-friendly drag shows remain legal and vowed to continue challenging the law.
“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” said ACLU Texas attorney Brian Klosterboer. “Because this law remains unconstitutional, we look forward to continuing this case before the district court and encourage anyone who is impacted by the law to reach out to us. Drag in Texas is here to stay.”
