Fifth Circuit declines to rehear Texas drag ban case

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The U.S. Court of Appeals for the Fifth Circuit has denied a petition for rehearing a case over Texas’ drag ban, vacating the permanent injunction that blocked the law for over two years.

In the case of The Woodlands Pride v. Paxton, the Fifth Circuit in November reversed a lower court ruling blocking Senate Bill 12, a Texas law restricting “sexually oriented performances,” including certain drag shows. 

Passed in 2023, the bill is now scheduled to take effect on March 18.

In September 2023, a federal district court found the law violated the U.S. Constitution and issued a permanent injunction preventing it from taking effect statewide. 

The Fifth Circuit, however, determined that S.B. 12 only applies to drag shows that are “sexually oriented” and “erotic.” 

The court found that drag shows featured at The Woodlands Pride and Abilene Pride festivals did not meet this standard and remain fully legal. But shows that are “sexual in nature” and performed in front of minors can expose drag artists to fines and jail time, and may also result in venues being fined.

The Texas ACLU says that in making that decision, the 5th Circuit emphasized that family-friendly and all-ages drag performances remain fully legal in Texas, since the drag shows at The Woodlands Pride and Abilene Pride Alliance’s events are not even “arguably proscribed” by the statute. 

“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” said Brian Klosterboer, senior staff attorney at the ACLU of Texas. 

“Because this law remains unconstitutional, we look forward to continuing this case before the district court and encourage anyone who is impacted by the law to reach out to us. Drag in Texas is here to stay.”

The judges did not rule on the constitutionality of the law’s restrictions on “sexually oriented performances.” Instead, the 5th Circuit is sending the case back to the district court for more analysis based on recent Supreme Court cases.

Case No. 23-20480