88th Texas Legislature
LGBTQ+ advocates sue to block Texas’ new law that could criminalize some drag performances
State officials backing Senate Bill 12 have said they want to protect children from seeing sexually explicit performances. But a new legal challenge says the law is so broad and vague that it criminalizes constitutionally protected expression.
This article originally appeared in The Texas Tribune
Senate Bill 12, which goes into effect on Sept. 1, originally sought to classify all drag shows as sexual performances, but it was dramatically altered throughout the regular legislative session. The version the Legislature eventually approved criminalizes performers that put on sexually explicit shows in front of children as well as any businesses that host those shows.
But it’s how the law defines sexually explicit behavior that spurred the lawsuit.
The complaint argues that SB 12’s language is overly broad, allowing for too much discretion for police, prosecutors and municipalities to decide what is or is not illegal.
“In its zeal to target drag, the Legislature passed a bill so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity,” says the lawsuit, which was filed by the American Civil Liberties Union of Texas. “The State has threatened the livelihood and free expression of many Texans.”
Under the law, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or appeals to the “prurient interest in sex.” Performers caught violating the proposed restriction could be slapped with a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $4,000 fine.
The plaintiffs, represented by the ACLU of Texas, argue that SB 12 violates the First and 14th Amendments because the law “discriminates against the content and viewpoints of performances and imposes prior restraint on free expression.”
According to The Dallas Morning News, attorneys who have reviewed the bill say it could end up criminalizing behavior common at everything from Pride parades to bachelorette parties.
“Surely we can agree that children should be protected from sexually explicit performances,” state Sen. Bryan Hughes, who authored SB 12, told the Tribune in an emailed statement Thursday afternoon. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”
The attorney general’s office, whose acting leader is one of the defendants in the suit, and several co-authors of the legislation did not respond to requests for comment Thursday.
The bill classifies the use of “accessories or prosthetics that exaggerate male or female sexual characteristics,” accompanied with sexual gesticulations as sexual conduct.
Brigitte Bandit, an Austin-based drag performer and one of the plaintiffs, criticized the addition of “accessories or prosthetics” to the bill.
“Is me wearing a padded bra going to be [considered] enhancing sexual features?” Bandit asked lawmakers earlier this year. “It’s still really vague but it’s still geared to try to target drag performance, which is what this bill has been trying to do this entire time, right?”
In a press release attached to the complaint, Bandit stated that they will not allow the drag community to be “used as a scapegoat or a distraction by politicians.”
Other plaintiffs are The Woodlands Pride, Abilene PRIDE Alliance, Extragrams LLC and 360 Queen Entertainment LLC.
In addition to the acting attorney general, they are suing the district attorneys of Montgomery and Bexar counties, the county attorney of Travis County, the city of Abilene, Woodlands Township, Montgomery County and Taylor County.
GLAAD, Equality Texas and the Transgender Education Network of Texas released a statement criticizing the law and portraying it as an attempt to unconstitutionally restrict the lives of LGBTQ+ Texans.
“The goal of this law is to chip away at our freedoms and eventually erase queer and trans existence from the public sphere,” said Andrea Segovia, senior field and policy advisor for TENT. “The plaintiffs of this case demonstrate true Texas values by standing strong for queer and trans rights. We’re supporting them every step along the way.”
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