Paxton calls ruling ‘profoundly flawed,’ vows to appeal
In a Tuesday ruling, U.S. District Judge David Hittner found that Texas’s ban improperly restricts speech and violates the First Amendment, preventing state Attorney General Ken Paxton from enforcing the law. It is the second time Hittner has struck down the law.
Hittner first declared the ban unconstitutional in September 2023 after advocacy groups sued the state, arguing that the law’s prohibition on “sexually oriented performance” infringed on constitutional rights. The 5th U.S. Circuit Court of Appeals cleared the way for the law to take effect in 2025, returning the case to Hittner and allowing Paxton to resume enforcing it earlier this year. The new ruling again prevents Paxton from enforcing the law.
Senate Bill 12 bars drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children, and prohibits “sexually-oriented performance” presented on premises in the presence of an individual younger than 18. Texas’s law was one of several state-level restrictions enacted in 2023 amid disputes over expanding queer and transgender rights.
Paxton, who is running for a U.S. Senate seat against Democrat James Talarico, said he would appeal the decision. “This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” Paxton said on X.
In his ruling, Hittner advised anyone “who find such activities as described in this case offensive” to “just don’t go.” He critiqued the law’s definition of performances that “appeal to the prurient interest,” writing that the terms were so broad they could block performers like Lady Gaga or Miley Cyrus from performing in the state.
Hittner’s opinion referenced Dolly Parton, who died on Tuesday. The judge cited people who would chastise Parton “as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure.” “There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under SB 12,” Hittner wrote.
He expanded on that argument: “Even if S.B. 12 were somehow content-neutral (an argument the Attorney General has never advanced), it still prohibits huge swaths of constitutionally protected performances. Because the term ‘prurient interest in sex’ is open-ended, SB 12 can be used to cherry-pick particular aspects of performances that might be ‘in some sense erotic’.”
Hittner wrote that the law was vague on its face and “failed to give a reasonable person notice of what is prohibited.” Because the law is so broad, he said, it caused some everyday activities — including “cheerleading, dancing, live theater, and other common public occurrences” — to be regarded as civil or criminal violations.
Civil liberties groups welcomed the ruling. “Drag has a rich history as a refuge of joy and liberation for countless Texans, and it’s not going anywhere,” the Texas chapter of the American Civil Liberties Union said in a statement. “All Texans – no matter our gender or background – are guaranteed the right to free expression,” it added.
Brigitte Bandit, a plaintiff in the case who impersonates Parton, celebrated the ruling on social media. “Drag is free speech, b----,” Bandit wrote. She announced she would also perform as Parton — who gave her a rhinestone guitar as a gift in 2023 — at an Austin bar on Saturday in Parton’s honor.