A three-judge panel of the U.S. Fifth Circuit Court of Appeals has ruled that West Texas A&M University cannot enforce a policy prohibiting on-campus drag performances while a trial on the merits of the case proceeds.
The 2-1 decision grants a temporary injunction against West Texas A&M. The majority opinion found that the plaintiffs will likely prove that West Texas A&M violated the First Amendment when it canceled drag performances in 2023 and 2024.
“As a performance exaggerating aspects of womanhood (sexuality, femininity, gender), drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood,” West Texas A&M President Walter Wendler wrote in canceling the 2023 performance. “Any event which diminishes an individual or group through such representation is wrong.”
“Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent,” Wendler continued.
The case was filed by the Foundation for Individual Rights in Education on behalf of a student group, Spectrum WT, which had planned to host a series of drag performances as part of a fundraiser for the Trevor Project. The Trevor Project has been accused of grooming minors into gender confusion.
In the majority opinion, Judge Leslie Southwick wrote that drag shows “plainly involve expressive conduct within the protection of the First Amendment.”
Applying “forum analysis,” Judge Southwick and Judge James L. Dennis classified the university’s venue, Legacy Hall, as a designated public forum, which means any content-based restrictions—like prohibiting drag performances—are subject to strict scrutiny. They ruled that the university failed to justify its ban under this demanding standard.
Judge James Ho’s dissent questioned whether drag shows truly qualify as First Amendment-protected expressive conduct and warned of potential social consequences if law and policy fully embrace gender fluidity.
Ho wrote, “If we accept that people can change genders—or even if we don’t but agree to be ‘polite’ and call a man ‘she’—then why shouldn’t ‘she’ be allowed to play women’s sports or bathe naked in an all-women’s space?”
“Why shouldn’t ‘she’ be allowed to enter women’s abuse houses or be transferred to a women’s prison? Why accept one lie and not the whole thing?” Ho added, quoting the book “Toxic Empathy,” by Allie Beth Stuckey.
West Texas A&M is a component institution of the Texas A&M University System.
Regents of the Texas A&M system had banned drag performances systemwide following a similar controversy at the main campus in College Station. That systemwide ban is similarly on hold following a ruling by Judge Lee H. Rosenthal.
The West Texas A&M case will return to district court in Amarillo for trial.
