HOUSTON — On Monday, a federal judge heard arguments over an American Civil Liberties Union lawsuit filed in opposition to Senate Bill 12, which bans sexually oriented performances in front of children.
Texas business owners, LGBTQ+ groups and a drag queen testified in front of U.S. District Judge David Hittner in a federal courtroom 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.
Critics said it overreaches and targets drag shows while supporters said they want to protect children from sexually explicit performances in public.
The ACLU sued for a permanent injunction against the bill. They're hoping to stop the law from going into effect on Sept. 1 and have also declared it to be unconstitutional.
The ACLU is representing five plaintiffs that include drag performers, businesses and gay pride groups. They argue that the bill is too broad and violates free speech. They said it could also be used to ban Broadway shows and cheerleading in addition to attacking drag shows. The plaintiffs said that drag is art, healing and satire -- not sexual.
The Woodlands Pride president testified that without their drag performers, the same messages couldn't be made. They said drag is an inherent part of the LGBTQ community and noted that their pride event has kid zones that are kept away from the stage.
“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.
Conservative group Texas Value filed an amicus brief in support of SB 12.
“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. At the beginning of what is expected to be a two-day hearing, 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 indicated he might issue a temporary injunction, given the limited window to block the law, before writing a more permanent order.
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.
Business owners who violate the law could be fined up to $10,000 and performers could face a fine and up to a year in jail.
The state will call witnesses to the stand on Tuesday.
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.