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Federal Judge Strikes Down Texas Ban On Drag Performances As 'Unconstitutional'

A federal judge has struck down a pending Texas law that would have effectively restricted drag performances, deeming it unconstitutional.

The law, Senate Bill 12, would have restricted “sexually oriented performances” on public property or in the presence of minors and prohibited performers from dancing suggestively or wearing items “that exaggerate male or female characteristics” in front of children.

U.S. District Judge David Hittner wrote in the ruling on Tuesday that drag shows are protected by the First Amendment and that “the Court sees no way to read the provisions of S.B. 12 without concluding that a large amount of constitutionally protected conduct can and will be wrapped up in the enforcement of S.B. 12.”

“It is not unreasonable to read S.B. 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation of S.B. 12,” he wrote, later adding that the law would have had a chilling effect on free speech.

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The latest version of the law omitted language that specifically referenced drag performances or people who dress in a gender-nonconforming manner, but Republican officials, including Gov. Greg Abbott, have indicated that it would target drag performances, which Hittner wrote in the ruling is something “the court cannot ignore.”

SB 12 was signed by Abbott in June and was set to take effect Sept. 1. It was challenged in a lawsuit filed by the American Civil Liberties Union of Texas on behalf of a drag performer, business owners and LGBTQ+ groups. The plaintiffs testified before Hittner in August about the content of drag performances, arguing that the law was too broad and violated their constitutional rights.

Plaintiff Brigitte Bandit, a Texas drag performer, pointed out in her testimony that she often wears a breastplate when on stage as singer Dolly Parton, The Texas Tribune reported. She said she feared criminal prosecution if the law took effect and predicted that the restaurants and clubs where she usually performs would stop hosting drag shows.

Under the law, business owners who host performances that feature nudity or that could be considered a “prurient interest in sex” would have faced fines of more than $10,000.

Another plaintiff noted in testimony that many drag artists could risk prosecution under the new law because twerking ― a dance move, rooted in Black culture, that’s sometimes part of a drag act ― could be interpreted as appealing to a “prurient interest in sex.”

Hittner issued a temporary injunction on Aug. 31, the day before the law was to take effect. In his opinion, he wrote that there was “a substantial likelihood that S.B. 12 as drafted violates the First Amendment of the United States Constitution under one or more of the legal theories put forward by the Plaintiffs.”

Texas Attorney General Ken Paxton had said that the plaintiffs didn’t show “an injury that is actual or imminent” or prove that drag shows are an expressive conduct that warrants First Amendment protection, according to The Hill.

But in the final ruling, Hittner bolstered his Aug. 31 opinion and stated that “drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles.”

“There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection,” he said.

A spokesperson confirmed to HuffPost that Paxton will appeal the judge’s ruling.

Texas is one of at least six states that have enacted laws to restrict drag performances, though some state bans have been temporarily blocked, according to ABC News.

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