Fifth Circuit Upholds Texas Drag Show Ban

The majority of the appeals panel said that the drag show organizers did not have standing to sue because their planned shows would not be considered “sexually oriented performance” under the previously-blocked Senate Bill 12.

The Fifth Circuit Court of Appeals has lifted a lower court's injunction against a Texas law that bans "sexually oriented" drag shows in public or in the presence of minors, allowing the state to enforce the law (Senate Bill 12) while the case is sent back for further review. This means the ban is now in effect. 
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The 2023 law (SB 12) prohibits performances that are "sexually oriented," which it defines as including specific sexual conduct or simulated contact with certain body parts in a way that appeals to "prurient interest". 

Key details of the ruling:

• Injunction lifted: A three-judge panel reversed a U.S. District Court judge's ruling that had previously declared the law unconstitutional and blocked its enforcement.
• Standing to sue: The majority opinion found that most of the plaintiffs, including a drag performer and two entertainment companies, did not have standing to sue because their planned shows would not be considered "sexually oriented performances" under the law. The court suggested that not all drag shows are inherently sexual.
• Case remanded: The case was sent back to the district court to reconsider a specific part of the law concerning the Texas Attorney General's enforcement powers.
• Dissenting opinion: One judge partially dissented, arguing that the intent of the law was to explicitly target all drag performers, regardless of explicit content, in violation of their First Amendment rights. 

Texas Attorney General Ken Paxton praised the decision as a "major win" for protecting children, while the ACLU of Texas, which represents the plaintiffs, expressed devastation and vowed to continue fighting the law, asserting that the First Amendment protects all artistic expression. 

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