Federal judge to hear 1st challenge to Texas drag performance law

Editor’s Note: The video above shows KXAN New Today's top headlines for Aug. 25, 2023.

HOUSTON (KXAN) — A federal judge will hold a hearing Monday morning on the first lawsuit aimed at blocking a Texas drag performance law.

U.S. District Judge David Hittner will hear arguments starting at 10:30 a.m. at the federal courthouse in Houston related to a legal challenge against Senate Bill 12, which will take effect next Friday on Sept. 1. The five plaintiffs include the Austin-based drag performer Brigitte Bandit and Extragrams, a local drag performance company.

The group suing the interim Texas attorney general and several other officials contends the law is unconstitutional and would harm their ability to make a living. They also argue the way the law is written could open up legal consequences for more than just drag performers.

Gov. Greg Abbott signed SB 12 on June 18 after lawmakers pushed the legislation through both chambers during the regular legislative session. However, the bill received significant pushback from advocates for the LGBTQ+ community and others over their concerns about it possibly criminalizing drag performances and venues that host shows in the state.

Before state lawmakers ultimately approved the legislation, they removed direct mentions of drag performances or gender non-conformity from the language. The bill initially filed by Sen. Bryan Hughes, R-Mineola, defined a “sexually oriented performance” to include “a male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.” However, that’s no longer in the final version adopted.

A “sexually oriented performance” is defined more broadly in the law now to be “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation;” “the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal;” “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals;” “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person;” and “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”

A business owner who hosts such a performance in front of someone younger than 18 could face a fine up to $10,000, while a performer engaged in a sexually oriented performance “on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child” could get charged with a misdemeanor. Additionally, a city or a county “may not authorize a sexually oriented performance,” according to the law.

When the plaintiffs filed the lawsuit earlier this month, Hughes expressed confidence the law could withstand this challenge.

“Surely we can agree that children should be protected from sexually explicit performances,” Hughes said in a statement. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”

Second lawsuit filed against SB 12

A second group of plaintiffs, including an Austin theater, filed a lawsuit against SB 12. It's unclear if or when a hearing will happen regarding this separate challenge.

The VORTEX Repertory Company located in east Austin joined seven other plaintiffs in suing Texas and local leaders to block SB 12 from going into effect next month. The other plaintiffs include four actors as well as the Greater Houston LGBTQ Chamber of Commerce, the San Antonio LGBT Chamber of Commerce and the North Texas LGBT Chamber of Commerce. 

In the new lawsuit, The VORTEX claims many of its performances “would arguably be considered ‘sexually oriented performances’ under SB 12 and, because there are no enforced age restrictions at the performances, they would likely violate the law.”