Drag shows are protected by First Amendment, performers tell federal judge

Brigitte Bandit reads to children during a local literacy event at the Contemporary Austin - Laguna Gloria in Austin on Nov. 13, 2022. (Montinique Monroe For The Texas Tribune, Montinique Monroe For The Texas Tribune)

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HOUSTON — In describing various drag shows for a federal district judge, plaintiffs suing the state over a new law restricting sexually-explicit shows explained in a two-day hearing that these shows are a political, healing and expressive form of performance art celebrated by the LGBTQ+ community.

Texas business owners, LGBTQ+ groups and a drag queen testified in front of U.S. District Judge David Hittner in a federal courtroom on Monday and Tuesday about the content of drag performances — some of which Texas leaders say is banned by Senate Bill 12. This testimony included a demonstration of how to twerk and a description of prosthetic breasts.

“Our shows and businesses have the responsibility to stand up for the freedom of speech of marginalized communities,” said Richard Montez, the owner of 360 Queen Entertainment, a San Antonio-based business that organizes drag shows and one of the plaintiffs in the lawsuit.

Lawyers for the state attorney general’s office asserted that drag shows are not necessarily expressive conduct, which would be protected by the First Amendment.

“The law is content neutral,” said Taylor Gifford, an assistant attorney general, in her opening statement. “It’s not discriminatory to these performances.”

With SB 12 scheduled to go into effect on Friday, plaintiffs requested a temporary injunction from Hittner. On Monday, Hittner declared that his ruling on the lawsuit would be final — he could allow the law to take effect or issue a permanent injunction. In the latter case, Hittner said he might issue a temporary injunction as soon as Thursday, given the limited window to block the law, before writing a more permanent order.

At the hearing's conclusion, Hittner said the case was one of the most interesting, and important, in his 37 years on the federal bench.

Originally billed as legislation that would prevent children from seeing drag shows, SB 12 eventually landed on language that doesn’t directly reference people dressing as the opposite gender. Instead the legislation prohibits any performers from dancing suggestively or wearing certain prosthetics in front of children. But Republican leaders have made it clear that drag shows are the target of this legislation.

“Texas Governor Signs Law Banning Drag Performances in Public. That’s right,” Gov. Greg Abbott posted on social media in June, sharing a story about SB 12’s passage.

Under the new 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.

At the beginning of August, legal groups filed two separate lawsuits against SB 12 with the hope of blocking it. The plaintiffs in one of the lawsuits, represented by the American Civil Liberties Union of Texas and the law firm Baker Botts, 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.”

Brigitte Bandit, an Austin-based drag performer and one of the plaintiffs, testified about the range of productions she puts on, from 21-and-up shows at bars to family-friendly drag brunches. All of which, she said, provide an opportunity to express herself and challenge gender expectations.

Bandit said some of her performances also include political messaging. She described one dress that bore the names of the 21 victims of the Uvalde school shooting, which she wore as an act of protest against SB 12.

“You’re able to be your most authentic self and express that to others,” Bandit said. “I believe the purpose of SB 12 is to push drag and queer artistry out of public spaces.”

Bandit detailed the various accessories she wears when performing drag, which included a breastplate — a vest with prosthetic breast that accentuates her female characteristics.

Bandit, who frequently performs in drag as country music singer Dolly Parton, said she was concerned that she could be criminalized by performing with a breastplate. She said that SB 12 would also have a chilling effect on clubs, restaurants and other areas where she performs, resulting in fewer performances.

Johnathan Stone, an assistant attorney general, asked San Antonio business-owner Montez to demonstrate twerking, a dance move that involves someone shaking their behind in a rapid movement with their hands on their knees. Montez obliged.

Montez said that twerking was culturally significant to some Black cultures and it is a central aspect of some performers' routines. Montez fears some might interpret twerking as appealing to the “prurient interest in sex,” and could be used to criminalize drag performers who twerk in public spaces.

Lawyers for the counties and municipalities named as defendants in the lawsuit were present on Monday. Some asserted that they should not be included in litigation aimed at SB 12.

Ray Viada, a lawyer for the City of Abilene, said the law restricts municipalities and counties from authorizing sexual oriented performances, but does not task these governmental entities with enforcing the criminal penalties. “This quarrel is with the state and state law,” Viada said.

Plaintiffs’ lawyers disagree. They said that municipalities, counties and district attorneys were included in the lawsuit because once SB 12 goes into effect, law enforcement and authorities will have to enforce and follow the law, which will result in irreparable harm to drag performers and LGBTQ+ groups.

Gifford, an attorney for the attorney general’s office, rejected the plaintiffs’ claim that SB 12 does not infringe on First Amendment rights because the drag show producers and performers testified that they tailor the productions depending on who is in the audience. She added that the law is narrowly tailored to protect children from sexually-oriented performances.

“There is nothing in SB 12 that explicitly bans drag,” Gifford said on Tuesday.

The state’s lawyers also argued that plaintiffs — who filed the lawsuit before the law took effect — failed to provide evidence that SB 12 was a credible threat to drag performers, business and LGBTQ+ groups.

Even without direct reference to drag, the law still imposes a credible threat to performers and businesses, said Brian Klosterboer, an ACLU attorney.

“Once we allow the government to start censoring and restricting certain types of shows simply because they’re unpopular or disfavored, that is a clear violation of the First Amendment,” Klosterboer told reporters on Tuesday after the hearing.

Jason Rocha started Woodlands Pride, another plaintiff in the lawsuit, as an advocacy group to celebrate the LGBTQ+ community in the township north of Houston where he grew up. Rocha founded Woodlands Pride after serving in the U.S. Army.

“This is exactly what you fight for, democracy and liberation,” Rocha said of his service in the military and his decision to be part of the lawsuit.

He said that if SB 12 was enacted his organization would struggle to put on festivals and other events for fear that law enforcement would fine or arrest the performers.

The state’s lawyers attempted to call Dr. Michael Arambula, a San Antonio-based psychiatrist with decades of experience in forensic psychiatry, as an expert on the impact of sexually-explicit material on children.

The judge dismissed Arambula after asking if he had met anyone who had incurred a lifelong affliction as a result of their experience with a drag queen. Arambula said the only people that fit that description were also exposed to sexual abuse.

Texas is one of six states that have passed a bill restricting “adult” or drag performances, according to the Movement Advancement Project, a nonprofit that tracks legislation related to LGBTQ+ issues.

Increased scrutiny over these performances motivated Republican lawmakers in Texas to approve SB 12. A small but influential cadre of activists and extremist groups fueled anti-drag panic in recent months and has characterized these performances as inherently sexual and inappropriate for children.

Legal challenges to similar legislation in Florida, Montana and Tennessee have successfully blocked these laws from going into effect. In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled the law is unconstitutional in its effort to suppress First Amendment-protected speech.

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