Texas’ drag ban cleared a key court step Wednesday as a federal appeals court denied plaintiffs’ bid for rehearing and reissued its ruling, setting the law on a timeline to begin enforcement in mid-March, according to the American Civil Liberties Union of Texas. The decision followed an earlier appeals-court order in November that had unblocked Senate Bill 12, after a U.S. district judge had struck the measure down in 2023.
The statute, Senate Bill 12, restricts certain public drag performances on property where the performers would be in front of children, according to the federal court record summarized by the plaintiffs’ attorneys and the appeals court’s opinion. The law prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children, and it also sets penalties that would include fines for business owners and potential criminal charges for people who violate the restrictions.
The legal fight has centered on the First Amendment challenge to SB 12’s restrictions and definitions. In September 2023, U.S. District Judge David Hittner declared the law unconstitutional, saying it “impermissibly infringes on the First Amendment” and that it was “not unreasonable” to think it could affect activities such as live theater or dancing. More than two years later, in November, a three-judge panel in the 5th U.S. Circuit Court of Appeals unblocked the law and sent the case back to the district court.
On Wednesday, the appeals court withdrew its November opinion and reissued a largely identical ruling, denying the plaintiffs’ request for rehearing. The ACLU of Texas said SB 12 will now take effect March 18, and the group said it will continue challenging the law in district court. The plaintiffs in the case included a drag performer, a drag production company and pride groups that sued over the law.
As part of the ruling, the appeals panel found that most of the plaintiffs did not demonstrate that they intended to conduct a “sexually oriented performance,” and it concluded they therefore could not show they would be harmed by the law. The appeals court’s reasoning indicated that not all drag performances would qualify as “sexually oriented” under SB 12, a distinction that critics said lawmakers had tried to avoid in earlier debates about the measure.
The appeals court evaluated SB 12’s definition of what counts as sexually oriented. The law considers a performance “sexually oriented” if the performer is nude or engages in sexual conduct, including “actual contact or simulated contact” involving a person’s “buttocks, breast, or any part of the genitals.” The law also requires the performance to “appeal to the prurient interest in sex,” and the panel wrote that to appeal to the ‘prurient interest in sex,’ material, at a minimum, must be “in some sense erotic.”
In one example discussed in the appeals court ruling, a pride group testified that some performers may “twerk,” but the panel said the described conduct did not amount to a sexually oriented performance. The panel also said accidental bumping or contact during front-facing hugs do not qualify under the law’s requirements. At the same time, the panel found that a drag production company’s described performances “arguably” were sexually explicit, though the ruling did not specify in detail which actions met the threshold.
The appeals court included separate views from the judges. Judge Kurt Engelhardt, a Trump appointee, wrote in a footnote that there is “genuine doubt” that these actions are “actually constitutionally protected—especially in the presence of minors.” Engelhardt was joined in that view by Judge Leslie Southwick, a Bush appointee. Judge James Dennis, a Clinton appointee, dissented in part in the November ruling, writing that a “gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand,” a view reflected in the description of the earlier opinion.
The appeals court also removed most of the defendants from the case before sending it back to the district court, to reconsider a portion of SB 12 focused on the Texas attorney general’s role in enforcing the law. Attorney General Ken Paxton said he welcomed the outcome in a news release in which he said, “I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” and that he looked forward to defending the law on remand.
Even with the rehearing denied, the ACLU of Texas and the plaintiffs said they expect to keep litigating the measure. In a statement, ACLU Texas attorney Brian Klosterboer said the rehearing denial left the law’s provisions “vague and sweeping” and said it creates a “harmful chilling effect” while also threatening performing arts beyond drag, including theater, ballet and professional wrestling. Klosterboer said the group would continue fighting the case before the district court and urged people impacted by the law to reach out to the ACLU of Texas, adding that “Drag in Texas is here to stay.”