First Amendment Protects Student Drag Show 5th Circuit Rules

A federal appeals court barred West Texas A&M University from enforcing a ban on drag shows on campus, overruling a lower court's decision that said drag shows did not necessarily enjoy First Amendment protections

A federal appeals court has ruled for an LGBTQ+ student group and two of its leaders who contended that their First Amendment rights were violated when officials at West Texas A&M University canceled a charity drag performance show on campus.

The Spectrum WT group is likely to succeed on its First Amendment argument and is entitled to a preliminary injunction that prevents the university’s ban on the performances, the 5th U.S. Circuit Court of Appeals at New Orleans ruled in a 2-1 opinion Aug. 18.

The Spectrum WT group scheduled the show for March 2023 at Legacy Hall, a university venue. The show would have raised money for an LGBTQ+ suicide prevention charity.

Eleven days before the show, Spectrum WT was informed that the event had been canceled because the university president thought that drag shows discriminate against women.

In a campuswide email, Walter Wendler, the university president, said the show does not “preserve a single thread of human dignity,” which comes from being “created in the image of God.”

“As a performance exaggerating aspects of womanhood (sexuality, femininity, gender), drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood,” Wendler said.

Referring to blackface performances, he said he doesn’t support shows that denigrate others.

The 5th Circuit said the show was intended to convey a message in support of LGBTQ+ rights.

“Drag shows—with performers dancing and speaking to music on stage in clothing associated with the opposite gender—mark a deliberate and theatrical subversion of gender-based expectations and signify support for those who feel burdened by such expectations,” the appeals court said.

The appeals court also said Legacy Hall was a designated public forum, and the content-based restriction on the show required a strict scrutiny analysis. The university president did not argue that canceling the drag show would survive that level of scrutiny, the appeals court said.

Judge Leslie H. Southwick, an appointee of former President George W. Bush, wrote the majority opinion, joined by Judge James L. Dennis, an appointee of former President Bill Clinton.

The dissenter was Judge James C. Ho, an appointee of President Donald Trump during his first term.

He argued that Legacy Hall was a limited public forum, and as a result, the case is governed by a 2010 U.S. Supreme Court decision, Christian Legal Society v. Martinez.

The decision held that the law school then known as the University of California’s Hastings College of the Law in San Francisco could expel the Christian Legal Society, a nonprofit Christian organization, from campus because it excluded nonbelievers, including those who disagree with a policy against “unrepentant homosexual conduct.” The California law school said the club’s bylaws conflicted with the school’s nondiscrimination policy.

Ho said he disagrees with the Supreme Court decision, but he is bound to follow it.

“I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS,” he wrote.

“It would turn the First Amendment upside down to give greater protection to drag shows than devotional acts,” Ho said.
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The decision is Spectrum WT v. Wendler.

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