The Fifth Circuit has allowed Texas to enforce its 2023 law restricting drag performances in public or around children, sending the case back to a lower court after reversing an earlier ruling that blocked the measure; the appeals judges made clear they do not see all drag shows as covered by the statute. The law targets sexually explicit conduct and certain prosthetics in public settings, and it carries fines and criminal penalties for violations. The court found that many plaintiffs did not show they intended to stage sexually oriented performances, while one judge expressed serious doubt about some actions being constitutionally protected. The decision breaks with the district court’s view and puts enforcement questions back before the trial judge.
Senate Bill 12 bars performers from dancing suggestively or wearing specific prosthetics on public property or where children are present, and it exposes business owners to up to $10,000 fines for hosting banned acts. Performers who cross the line face a Class A misdemeanor charge. Those penalties are at the heart of the dispute and frame the state’s interest in shielding minors from erotic displays.
A three-judge panel of the Fifth U.S. Circuit Court of Appeals reversed the district court and remanded the case, narrowing the field of plaintiffs who could claim immediate injury under the statute. That reversal means the law can operate while questions about enforcement and who can sue are sorted out below. The move hands the lower court fresh work to define the statute’s reach.
The appeals panel said most of the named plaintiffs, which included a performer, a production company and several pride groups, had not shown plans for “sexually oriented performance,” so they could not claim concrete harm under the law’s sex-focused restrictions. In other words, simply being a drag artist or an advocacy group did not automatically put them in the zone of the ban. The court’s framing recognizes a legal distinction between general artistic expression and performances the state deems sexually explicit.
The court also stressed that it does not view every drag show as sexually explicit, a point that undercuts blanket claims that the statute outlaws drag as an art form. That contrasts with U.S. District Judge David Hittner’s earlier ruling that the law “impermissibly infringes on the First Amendment” and that it is “not unreasonable” to believe it could affect activities such as live theatre or dancing. The appeals court’s step back signals judges are parsing the law more narrowly than the district court did.
Opponents have long argued that Republican lawmakers were painting all drag performances with the same brush, trying to call every show sexually explicit to justify broad bans. Supporters, meanwhile, insist the law targets specific conduct and protects families and children. The debate now shifts to which performances truly meet the statute’s definition of sexually oriented acts.
The panel acknowledged that some acts described by a production company were arguably sexually explicit, and it recounted testimony from an owner about particular conduct at shows. “When asked whether the performers ‘simulate contact with the buttocks of another person,’ the owner testified that the performers sit on customers’ laps while wearing thongs and one performer invited a ‘handsome’ male customer ‘to spank her on the butt,'” the ruling said. “When asked whether the performers ‘ever perform gesticulations while wearing prosthetics,’ the owner testified that in 360 Queen’s most recent show, a drag queen ‘wore a breastplate that was very revealing, pulsed her chest in front of people, (and) put her chest in front of people’s faces.'”
Judge Kurt Engelhardt, joined by Judge Leslie Southwick, noted in a footnote that there is “genuine doubt” that these actions are “actually constitutionally protected” —especially in the presence of minors. Judge James Dennis disagreed with that view and warned of overbroad language. “That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand,” Dennis wrote in his partial dissent.
The appeals court also narrowed the list of defendants before remanding so the district court can reconsider the portion of the law dealing with who enforces it, particularly the Texas attorney general’s role. That procedural pruning matters because it affects where and how the law will be defended in court going forward. The remand ensures the enforcement questions will get another look at the trial level.
Texas Attorney General Ken Paxton praised the decision and framed it as a victory for families and decency, saying he “will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances.” He added, “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.” Paxton presented the ruling as validation of the state’s duty to protect minors.
The plaintiffs and the ACLU of Texas, which represents the plaintiffs, described the ruling as “heartbreaking,” adding that they plan to continue fighting the law. They stressed they will press the case back through the courts to challenge what they see as an unconstitutional restriction on expression.
“We are devastated by this setback, but we are not defeated,” they said in a joint statement. “Together, we will keep advocating for a Texas where everyone — including drag artists and LGBTQIA+ people — can live freely, authentically, and without fear. The First Amendment protects all artistic expression, including drag. We will not stop until this unconstitutional law is struck down for good.”
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