Federal judge temporarily blocks Texas drag performance law from taking effect

HOUSTON (KXAN) — A Texas law that could criminalize drag performances in the state is temporarily blocked from going into effect after a federal judge's early decision about a legal challenge Thursday.

U.S. District Judge David Hittner issued a temporary restraining order against Senate Bill 12, which was set to go into effect Friday. He granted this request after a two-day hearing earlier this week over a lawsuit brought by an Austin-based drag performer, a local drag production company and three other plaintiffs. Hittner wrote in his decision that this order would last only 14 days while he deliberated on a permanent injunction over the law. If that ultimately happens, it will almost certainly be appealed by the state.

The American Civil Liberties Union of Texas, which helped represent the plaintiffs in this case, released a statement praising the temporary injunction.

"This law was obviously unconstitutional from the day it was first proposed, and we are grateful that the court has temporarily blocked it," Brian Klosterboer, an attorney at the ACLU of Texas, said in a statement. "Senate Bill 12 is vague, overbroad, and censors free expression. If allowed to take effect, S.B. 12 will make our state less free, less fair, and less welcoming for every artist and performer. This temporary order is a much-needed reprieve for all Texans, especially our LGBTQIA+ and transgender community, who have been relentlessly targeted by our state legislature."

In his ruling Thursday, Hittner wrote he agreed with the plaintiffs after hearing their claims earlier this week that the law is unconstitutional.

"Based on the evidence and testimony presented at the Hearing, the Court finds there is 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," Hittner said. "Regarding the irreparable harm element, the Court considers the impending infringement on the Plaintiffs constitutional rights sufficient irreparable harm to warrant enjoining S.B. 12 while a final judgment is drafted."

This decision comes the same day that the Texas Supreme Court denied a motion for temporary relief and allowed a ban on transgender health care for minors to take effect Friday.

Gov. Greg Abbott signed SB 12 on June 18 after mostly Republican 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.

A “sexually oriented performance” is defined broadly in the law 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.