LGBTQ+ advocates sue to block Texas’ new law that could criminalize some drag performances

Drag artist Brigitte Bandit and other attendees wait to testify against Senate Bill 12 in March. Bandit is among LGBTQ Texans and advocacy groups trying to black the new law, which goes into effect Sept. 1. (Leila Saidane/The Texas Tribune, Leila Saidane/The Texas Tribune)

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LGBTQ+ Texans, advocates, artists and business groups filed two federal lawsuits this week to block a new state law that criminalizes some drag shows — and other performances — if they occur in front of children.

Senate Bill 12, which goes into effect Sept. 1, originally sought to classify all drag shows as sexual performances, but it was dramatically altered throughout the regular legislative session. The version the Legislature eventually approved criminalizes performers who put on sexually explicit shows in front of children as well as any businesses that host those shows.

But it’s how the law defines sexually explicit behavior that spurred the lawsuits.

The complaints argue that SB 12’s language is overly broad, allowing for too much discretion for police, prosecutors and municipalities to decide what is legal or illegal.

“In its zeal to target drag, the Legislature passed a bill so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity,” says one of the lawsuits, which was filed by the American Civil Liberties Union of Texas on Wednesday. “The State has threatened the livelihood and free expression of many Texans.”

Under the law, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or appeals to the “prurient interest in sex.” Performers caught violating the proposed restriction could be slapped with a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $4,000 fine.

The plaintiffs in Wednesday’s lawsuit, represented by the ACLU of Texas, argue that SB 12 violates the First and 14th Amendments because the law “discriminates against the content and viewpoints of performances and imposes prior restraint on free expression.”

A second lawsuit, filed Friday by the Texas Civil Rights Project, argues SB 12 will reshape the landscape of performing arts in Texas. The group is seeking a temporary injunction before the law goes into effect. The plaintiffs include several Texas performers, a theater and three LGBTQ+ chambers of commerce, all of which assert that the law violates their civil rights and freedom of expression.

“This law is broad, hateful, and difficult to interpret and enforce. It is an attack on our First Amendment rights to create our theatrical art without oversight by the state,” Bonnie Cullum, co-founder and producing artistic director of the Austin-based theater The VORTEX, said in a statement announcing the lawsuit. “It threatens my professional career and places me and our non-profit performing arts company in jeopardy for making the art that we have shaped and nurtured since 1988.”

According to The Dallas Morning News, attorneys who have reviewed the bill say it could end up criminalizing behavior common at everything from Pride parades to bachelorette parties.

“Surely we can agree that children should be protected from sexually explicit performances,” state Sen. Bryan Hughes, who authored SB 12, told the Tribune in an emailed statement Thursday afternoon. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.” Hughes’ office did not respond to a request for comment regard Friday’s lawsuit.

The attorney general’s office, whose acting leader is one of the defendants in both suits, and several co-authors of the legislation did not respond to requests for comment as of Friday afternoon.

The bill classifies the use of “accessories or prosthetics that exaggerate male or female sexual characteristics,” accompanied with sexual gesticulations as sexual conduct.

Brigitte Bandit, an Austin-based drag performer and one of the plaintiffs in the ACLU lawsuit, criticized the addition of “accessories or prosthetics” to the bill.

“Is me wearing a padded bra going to be [considered] enhancing sexual features?” Bandit asked lawmakers earlier this year. “It’s still really vague, but it’s still geared to try to target drag performance, which is what this bill has been trying to do this entire time, right?”

In a press release attached to the complaint, Bandit stated that they will not allow the drag community to be “used as a scapegoat or a distraction by politicians.”

Bandit’s co-plaintiffs include The Woodlands Pride, Abilene PRIDE Alliance, Extragrams LLC and 360 Queen Entertainment LLC.

In addition to the acting attorney general, they are suing the district attorneys of Montgomery and Bexar counties, the county attorney of Travis County, the city of Abilene, Woodlands Township, Montgomery County and Taylor County.

The second lawsuit also named Angela Colmenero, the acting attorney general, as a defendant, in addition to the Travis County and Harris County district attorneys and the cities of Austin and Houston. The lawsuit included the district attorneys and municipalities as defendants because these groups are involved with the enforcement of SB 12.

GLAAD, Equality Texas and the Transgender Education Network of Texas released a statement Thursday criticizing the law and portraying it as an attempt to unconstitutionally restrict the lives of LGBTQ+ Texans.

“The goal of this law is to chip away at our freedoms and eventually erase queer and trans existence from the public sphere,” said Andrea Segovia, senior field and policy adviser for TENT. “The plaintiffs of this case demonstrate true Texas values by standing strong for queer and trans rights. We’re supporting them every step along the way.”

Disclosure: The ACLU of Texas and Equality Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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