HOUSTON — A federal judge on Tuesday again declared Texas’ restrictions on certain public performances involving drag and nudity unconstitutional, preventing the state from enforcing the 2023 law on First Amendment grounds.
U.S. District Judge David Hittner previously struck down Senate Bill 12 in September 2023, several months after the Texas Legislature approved it. The 5th U.S. Circuit Court of Appeals later returned the case to Hittner with instructions to reconsider the lawsuit after removing several parties.
Hittner said Tuesday that the appellate court’s decision did not disturb his earlier finding that SB 12 violated the First Amendment. His ruling again blocks enforcement of the law, which took effect in March after the appeals court’s decision.
Hittner said the law uses definitions of performances and nudity that are too broad and could apply to activities beyond drag shows, including provocative cosplay at conventions, swimming competitions and performances featuring Dolly Parton or Elvis impersonators.
“The vast majority of the law’s numerous applications violate the First Amendment,” Hittner wrote, concluding that the law restricts constitutionally protected performances based on their content and viewpoint.
The lawsuit initially named Texas Attorney General Ken Paxton, two counties, three district attorneys and a county attorney as defendants. Community pride groups, entertainment organizations and drag performer Brigitte Bandit filed the lawsuit.
Following the 5th Circuit’s ruling, the two pride groups were removed as plaintiffs and Paxton became the sole defendant, changes Hittner said complied with the appellate court’s instructions.
Bandit said in a statement provided by the American Civil Liberties Union that drag performances allow her and others to express “liberation, power, and joy.”
The ruling noted that Gov. Greg Abbott described SB 12 as a drag ban after lawmakers approved it. The law does not explicitly mention drag performances, although an earlier version of the bill included references to drag.
Hittner also rejected Paxton’s request for another trial and additional discovery.
For people who object to the performances covered by the case, Hittner wrote that they can choose not to attend them.
