A judge has blocked, for now, a Texas law drag show performers fear will shut them down

by Sophia Chen
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First Amendment concerns

A federal judge has issued a temporary injunction that currently prevents the enforcement of a recently enacted Texas law, which has raised concerns among drag show performers about potential shutdowns or legal consequences. This law, passed by the Republican-controlled Legislature, seeks to expand the legal parameters outlined in the Texas criminal code for defining unlawful public displays of sexual conduct involving children. It forms part of a broader conservative movement within Texas and similar states to impose restrictions on drag performances and curtail LGBTQ+ rights.

Critics of the law have pointed out its sweeping nature, indicating that it could encompass even performances as mainstream as those by the Dallas Cowboys cheerleaders.

U.S. District Judge David Hittner, based in Houston, issued the temporary restraining order subsequent to a legal challenge brought forward by a coalition of drag performers and advocates for LGBTQ+ rights. Their objective was to prevent the law from taking effect as scheduled on Friday. During a two-day courtroom hearing earlier in the week, drag artists and their supporters expressed concerns that the new law would jeopardize their livelihoods and infringe upon their freedom of expression.

In his ruling, Judge Hittner concurred with the plaintiffs’ assertion that the new law likely infringes upon their First Amendment rights, rendering it potentially unconstitutional. To prevent the law from being enforced immediately, Hittner issued the temporary restraining order, intending to prepare a more comprehensive, enduring order in due course.

Brian Klosterboer, a representative of the American Civil Liberties Union of Texas, the organization that initiated the lawsuit on behalf of the plaintiffs, welcomed the interim order as a crucial respite for Texans, particularly those belonging to the LGBTQIA+ and transgender community. He highlighted the relentless targeting of these groups by the state legislature.

The Texas Attorney General’s Office, which represented the state in this legal dispute, stated that the law was established with the intention of safeguarding children and preserving public decency. According to Paige Willey, a spokesperson for the attorney general’s office, the people of Texas were deeply concerned by the proliferation of explicit “drag” performances marketed to families with children. The office expressed its commitment to vigorously defending the law through any available legal means.

Gavyn Hardegree, president of the Abilene Pride Alliance and one of the plaintiffs in the lawsuit, asserted that Governor Greg Abbott and his allies were employing fear tactics and prejudice to erase LGBTQIA+ identities, particularly those of Black and Brown nonbinary and transgender Texans. Hardegree emphasized the importance of creating a secure environment where every individual can freely express themselves without government-imposed censorship, irrespective of their race or gender.

This legal development in Texas mirrors similar decisions made in other states, including Florida and Tennessee, where bans on drag performances were met with legal challenges. In Tennessee, a fresh lawsuit was recently filed after a local district attorney expressed intent to enforce the state’s drag show restrictions, despite an earlier federal court ruling deeming the ban unconstitutional.

The newly implemented Texas law pertaining to sexual content in performances was initially introduced as a measure to shield children from exposure to drag shows. Although Republican lawmakers made amendments to address criticisms, eliminating some explicit references to drag performances, the “statement of intent” from the sponsor still emphasizes the need to protect children from such displays. The final text of the law broadens the scope of what constitutes illegal activity, potentially impacting a wide range of performances in front of children.

For instance, the law incorporates sexual gestures using “accessories or prosthetics that exaggerate male or female sexual characteristics” as part of the definition of sexual conduct. Additionally, it criminalizes real or simulated touching, arousal, and the display of sexual paraphernalia in a “prurient” manner, if performed in the presence of a minor or on public property in settings where a child might reasonably be expected to witness it. Violations could result in up to a year of imprisonment, while businesses hosting prohibited performances could face fines of $10,000 per violation.

Similar to Texas, Arkansas introduced a law regulating adult-oriented performances that doesn’t explicitly mention drag shows but has raised concerns about its potential application to such performances. Montana has also implemented a ban that specifically targets drag queen story hours.

Despite the sponsor’s assertion that the law is not intended to hinder theatrical or similar presentations, the lawsuit contends that it could inadvertently encompass a range of other forms of entertainment, including television, movies, websites, touring Broadway plays, karaoke events, and restaurants with servers dressed in revealing attire.

Frequently Asked Questions (FAQs) about First Amendment concerns

What is the Texas law regarding drag shows and LGBTQ+ rights?

The Texas law in question aims to broaden the legal definition of illegal public displays of sexual conduct involving children. It has sparked concerns about its potential impact on drag shows and LGBTQ+ rights.

Why did the federal judge issue a temporary injunction?

The federal judge issued the temporary injunction due to concerns raised by drag performers and LGBTQ+ advocates. They argued that the law could hinder their freedom of expression and livelihoods, potentially violating their First Amendment rights.

How did the judge view the constitutionality of the law?

The judge agreed with those who filed the lawsuit, asserting that the new law likely violates the First Amendment. This led to the issuance of the temporary restraining order to halt the law’s enforcement while a more permanent order is prepared.

What does the law define as sexual conduct?

The law’s definition of sexual conduct includes a wide range of activities, such as sexual gestures using accessories, simulated touching, arousal, and the display of sexual paraphernalia, if performed in a “prurient” manner in front of a minor or on public property.

What are the potential consequences for violating the law?

Violations of the law could result in up to a year of imprisonment. Additionally, businesses hosting performances deemed illegal could face fines of $10,000 for each violation.

How do critics view the law’s scope?

Critics argue that the law’s definition is overly broad and could encompass various performances beyond drag shows, potentially affecting entertainment such as television, movies, websites, karaoke events, and more.

Are other states implementing similar laws?

Yes, other states like Florida and Tennessee have encountered legal challenges to their bans on drag performances. Some laws, while not explicitly targeting drag shows, have led to concerns about their application to such performances in the future.

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