The First Amendment protects drag shows, performers tell a federal judge in Texas just days before the state’s new law would ban them.
Senate Bill 12, which will go into effect on Friday unless it’s blocked, would have defined any “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,” as a “sexually oriented performance” and ban them from public property or anywhere minors are permitted to be.
According to those defending it, the law is ‘content neutral,’ and ‘not discriminatory,’ but as there is no other specific definition of what makes something a “sexually oriented performance” in the original draft of the law, it’s very clearly aimed at defining drag performers as sex workers, and making it a crime to allow them near children. The language of the law has been changed to “any performer who engages in sexual conduct” without definition and prohibiting “using accessories or prosthetics that exaggerate male or female
sexual characteristics.”
Those changes alone are a partial win – they don’t outright state that gender nonconformity should be a sex crime, like the original, but they leave the door open for identical persecution.
And the people passing it are clear, that’s what they want.
“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.
On Monday and Tuesday, LGBTQ+ groups and a drag queen in costume, along with many Texas business owners testified in front of U.S. District Judge David Hittner in a federal courtroom.
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.