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ACLU of Texas sues state attorney general, county attorneys over drag performance restrictions

The drag performer Brigitte Bandit holds wads of cash as she performs in Austin with a crowd behind her.
Karina Lujan
Drag performer Brigitte Bandit, one of the plaintiffs in the lawsuit, performs at Coconut Club in Austin in June 2022.

The ACLU of Texas filed a lawsuit on Wednesday against the state’s interim attorney general over Senate Bill 12, a law set to go into effect next month that would severely restrict drag performances in public.

The lawsuit, filed in the U.S. District Court Southern District of Texas Houston Division, claims the law is unconstitutional because it singles out drag performers as “disfavored forms of expressions.”

“By enacting this law, the State has threatened the livelihood and free expression of many Texans, including drag performers across our state,” the lawsuit states.

Senate Bill 12 prohibits “sexually oriented performances” from happening in front of minors. According to the bill’s language, that includes nude performers, performances that appeal “to the prurient interest in sex,” and any other sexual conduct like “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”

The ACLU of Texas claimed that the law is so “yawning in scope it criminalizes and restricts an enormous swath of constitutionally protected activity, including theater, ballet, comedy, and even cheerleading.”

The lawsuit asks for a preliminary and permanent injunction on SB 12, and a declaration that the measure is unconstitutional.

Interim Texas Attorney General Angela Colmenero didn’t immediately reply to a request for comment.

The lawsuit names eight other defendants including the district attorneys of Montgomery, Taylor, and Bexar Counties, as well as the county attorney of Travis County, who would be tasked with enforcing the law.

Delia Garza, the county attorney for Travis County, said in a statement that she appreciates the ACLU's efforts “to bring some clarity to a law that has constitutional concerns."

"I continue to hope that in the name of true public safety, our state leaders will one day focus on actual public safety threats, like gun violence, instead of legislation like SB12 which will have little to no effect on the day to day operations of a community and its public safety needs," Garza said.

The plaintiffs are The Woodlands Pride, Inc., Abilene Pride Alliance, Extragrams LLC, 360 Queen Entertainment LLC, and Brigitte Bandit, a drag performer based in Austin.

The evolution of Senate Bill 12

During this year’s Texas legislative session, lawmakers held lengthy debates on SB 12.

The measure evolved from its inception. Initially, the bill included language that banned a male performer exhibiting as a female or a female performer exhibiting as a male from performing in front of minors.

But after debates, lawmakers dropped the explicit language targeting drag performers.

Under the new law, a person who violates it could be charged with a Class A misdemeanor, an offense that is punishable by up to one year in jail and or a fine of up to $4,000.

The measure is set to go into effect on Sept. 1.

In a statement to The Texas Newsroom Thursday, Sen. Bryan Hughes, the Republican author of the measure, said "we can agree that children should be protected from sexually explicit performances. Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”

Sergio Martínez-Beltrán is the former Texas Capitol reporter for The Texas Newsroom.
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