Texas can now enforce a ban on sexually explicit shows in front of children, after federal appellate judges reversed a lower court ruling that blocked the law.
A two-judge panel of the U.S. Fifth Circuit Court of Appeals issued an opinion Wednesday lifting an injunction against enforcing the ban, which Texas lawmakers passed in 2023 as Senate Bill 12 to regulate sexually oriented performances on public property and in the presence of minors.
The ban includes erotic drag shows in front of kids.
Female “drag” performer Brigitte Bandit and others in the drag industry brought a pre-enforcement challenge to the law, which has been tied up in the courts ever since.
Plaintiffs alleged that the law facially violates the First and Fourteenth Amendments by squelching free speech and being too vague.
The Fifth Circuit found that only one plaintiff, 360 Queen Entertainment, had standing to sue. Judges determined that Bandit and “pride” group plaintiffs did not intend to engage in conduct proscribed by the law.
Circuit Judge Kurt D. Engelhardt wrote, “Based on the evidence introduced at trial, 360 Queen’s performances arguably include proscribed conduct. The owner described one performance where a drag queen, who was wearing a ‘very revealing’ breastplate pulsed the breastplate in front of people and put the breastplate in people’s faces.”
“Because the plaintiffs only have standing to assert their claims against the Attorney General, and the Attorney General only has the authority to enforce Section One, the remaining issues on appeal are whether the plaintiffs have established that Section One, on its face, violates the First Amendment or is unconstitutionally vague,” wrote Engelhardt.
Section One of the law prohibits a “person who controls the premises of a commercial enterprise” from “allow[ing] a sexually oriented performance to be presented on the premises in the presence of an individual younger than 18 years of age.”
In a footnote, the court expressed “genuine doubt” whether “pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected—especially in the presence of minors.”
The court remanded the case back to the district court to reconsider the plaintiffs’ facial challenges.
In November 2025, the appellate court issued a similar ruling upholding SB 12.
Last month, a federal district court judge ruled that West Texas A&M University can prohibit sexually explicit drag performances on its campus.
Judge Matthew Kacsmaryk wrote that drag shows are not “expressive conduct” warranting constitutional protection, explaining that while nearly “all conduct can be considered expressive in some sense … not all conduct is entitled to First Amendment protection.”
