The American Civil Liberties Union (ACLU) of Texas is challenging an impending state law restricting drag performances, arguing in a new lawsuit filed this week in federal court that the measure unconstitutionally violates the First and 14th Amendments of the U.S. Constitution.
Texas Gov. Greg Abbott (R) in June signed legislation restricting certain drag performances that take place in public or where they could be viewed by a minor. Similar laws have been enacted this year in Arkansas, Florida, North Dakota, Montana and Tennessee.
The Montana and Florida measures, however, are currently unenforceable due to federal court orders, and Tennessee’s drag ban was ruled unconstitutional in June. The state has appealed that decision.
The Texas law, which is set to take effect Sept. 1, prohibits businesses from hosting “sexually oriented performances” in which someone is nude or appeals to the “prurient interest in sex” in the presence of minors. The law also applies to performances that take place where they “could reasonably be expected to be viewed by a child.”
Businesses that break the law could face hefty fines — up to $10,000 per violation. Performers face much harsher penalties, and those caught violating the state’s new restrictions could be charged with a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine.
The Texas law does not specifically mention drag performances, but state politicians have repeatedly said the measure is intended to restrict drag show. An earlier version of the bill made direct reference to drag performances.
In a statement celebrating the state legislature’s passage of the bill in May, Texas Lt. Gov. Dan Patrick (R) said it is necessary to “push back against the radical left’s disgusting drag performances.”
“Children, who cannot make decisions on their own, must be protected from this scourge facing our state,” he said.
LGBTQ civil rights groups have argued that the law and others like it could also be used to target transgender people.
According to the ACLU’s lawsuit, filed Wednesday in the Southern District of Texas, the state “has threatened the livelihood and free expression of many Texans, including drag performers in our state.”
The plaintiffs — two LGBTQ nonprofit organizations, two businesses and a drag queen — say they have already suffered “concrete harms” due to the impending law, including loss of business and threats to their personal safety.
They are asking the court to temporarily block the measure from taking effect next month, arguing that it “unconstitutionally singles out drag performances as a disfavored form of expression.”
Defendants include interim state Attorney General Angela Colmenero and several state district attorneys who would be responsible for enforcing the law’s restrictions.
Wednesday’s lawsuit also argues that the state’s targeting of drag is “based on historic levels of animus this legislative session towards LGBTQIA+ Texans,” referring to the more than 140 bills introduced this year that seek to curtail LGBTQ rights.
The measure is also overly broad, the lawsuit argues, and “in its zeal to target drag, the Legislature passed a bill so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity, including theater, ballet, comedy and even cheerleading.”
“Texas queens and kings from across our great state have been targets of threats and misinformation as a result of the anti-drag law,” said Brigitte Bandit, a drag performer and one of the plaintiffs in the case. “We must reject their attempts to divide us and continue to come together in our truth and power to support each other as Texans should.”
Brian Klosterboer, a staff attorney at the ACLU of Texas, in a statement said the new law “flies in the face of the First Amendment.”
“The Texas Drag Ban is stunningly broad in scope and will chill entire genres of free expression in our state,” he said. “No performer should ever be thrown in jail because the government disfavors their speech, and we are asking the Court to block this affront to every Texan’s constitutional rights.”