Texas drag restriction law cleared to take effect in March

The 5th U.S. Circuit Court of Appeals has cleared the way for Texas’s drag restriction law to take effect on March 18, despite ongoing constitutional challenges from LGBTQ+ advocates and civil rights organizations.

In a ruling issued Wednesday, the court refused to grant a rehearing in a case brought by Texas drag performers and LGBTQ+ groups, reiterating its November 2025 conclusion that the plaintiffs lacked standing. The panel held that the performances described in their testimony were not clearly sexual enough to place them at imminent risk of prosecution under the statute as written, LGBTQ+ Nation reports.

The law, S.B. 12, signed by Gov. Greg Abbott (R) in June 2023, criminalizes “sexually explicit” performances in the presence of minors. Although the text does not explicitly use the word “drag,” Abbott and other supporters have publicly framed it as a ban on public drag shows.

Under S.B. 12, a performance is covered if it involves “a male performer exhibiting as a female, or a female performer exhibiting as a male” using clothing, makeup, or other similar markers while singing, dancing, lip syncing, or otherwise performing before an audience. A performance is deemed “sexually explicit” if it appeals “to the prurient interest in sex” and includes “actual contact or simulated contact” with another person’s buttocks, breasts, or genitals. Performers and venues face penalties of up to one year in jail and fines of up to $10,000.

The case before the 5th Circuit involved 360 Queen Entertainment, The Woodlands Pride, and Abilene Pride Alliance, among others. According to testimony cited in the opinion, performers at 360 Queen shows have at times sat on customers’ laps while wearing thongs and invited audience members to spank them. One performer allegedly wore a revealing breastplate, “pulsed her chest in front of people, [and] put her chest in front of people’s faces.”

Judges Kurt Engelhardt, appointed by Donald Trump, and Leslie Southwick, appointed by George W. Bush, wrote that there was “genuine doubt” as to whether such conduct is “actually constitutionally protected—especially in the presence of minors.” However, they did not clearly state whether the cited performances would fall within the law’s prohibitions, leaving performers and venues with significant uncertainty.

Civil rights advocates argue that this ambiguity is precisely the problem. The ACLU of Texas, which filed suit in August 2023 on behalf of drag performers and LGBTQ+ groups, contends that S.B. 12 unconstitutionally targets gender-nonconforming expression and sweeps in a wide range of protected speech, including theater, ballet, comedy, and even cheerleading.

In September 2023, U.S. District Judge David Hittner agreed, striking down the law as a violation of the First Amendment that “impermissibly infringes on the First Amendment and chills free speech.” The 5th Circuit’s decision last November to revive the law, and now to deny a rehearing, allows it to take effect while the case continues in Hittner’s court.

Nonbinary drag activist Brigitte Bandit responded to that earlier decision by stressing that drag remains lawful in Texas: “Please be aware that this ‘drag ban’ only applies to certain types of performances where minors can be present. drag storytimes are still legal. drag shows are still legal. book and support your local drag. we need it now more than ever,” they wrote on social media.

Even so, performers and venue operators warn that the vague language and harsh penalties are already having a chilling effect. Many fear that bars, theaters, and festivals will cancel or heavily censor drag performances and may bar anyone under 18 from attending, rather than risk legal exposure.

The law relies on complaints and whistleblowers for enforcement, heightening concerns that it could be used to harass LGBTQ+ artists and spaces selectively. Advocates say this dynamic reinforces stigma against queer and trans communities under the guise of “protecting children.”

The plaintiffs and the ACLU of Texas have vowed to press on.

“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” said ACLU of Texas attorney Brian Klosterboer in a statement. “Because this law remains unconstitutional, we look forward to continuing this case … [We] encourage anyone who is impacted by the law to reach out to us. Drag in Texas is here to stay.”