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A drag performer at San Antonio Pride; U.S. Court of Appeals for the Fifth Circuit
The case now returns to the judge who initially blocked the law from taking effect.
The U.S. Court of Appeals for the Fifth Circuit on Thursday vacated a lower court ruling that blocked Texas’s Senate Bill 12, the state’s controversial “sexually oriented performances” law, and ordered a narrower review, reopening one of the nation’s most closely watched legal battles over drag and LGBTQ+ expression.
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The three-judge panel found that only one plaintiff, San Antonio–based 360 Queen Entertainment, had standing to challenge the law. The court said 360 Queen’s shows, which included “twerking,” simulated contact between performers and audience members, and the use of prosthetics to “exaggerate sexual characteristics,” could arguably fall under the statute.
Related: Texas Judge Strikes Down Anti-Drag Law Days After Another Upholds College Drag Ban
The other plaintiffs, including The Woodlands Pride and the Abilene Pride Alliance, were found not to have standing because their family-oriented events did not appeal to the “prurient interest in sex.”
Senate Bill 12, signed by Republican Gov. Greg Abbott in 2023, makes it a crime to host or perform a “sexually oriented performance” in public or in the presence of minors. Though it never mentions drag, state leaders framed it as a drag ban. Lt. Gov. Dan Patrick called it an effort to “ban children’s exposure to drag shows,” and bill author Sen. Bryan Hughes said it targeted “sexually explicit performances like drag shows.”
The ruling marks a sharp turn from a September 2023 decision by U.S. District Judge David Hittner, who struck down S.B. 12 as an unconstitutional restriction on free speech. At the time, Hittner wrote that the statute “impermissibly infringes on the First Amendment and chills free expression,” noting its vague language could criminalize everything from drag story hours to theater performances.
The Fifth Circuit majority disagreed, writing that “none of the trial evidence indicates that the performances are ‘in some sense erotic,’” and concluded that most plaintiffs failed to prove their events were “arguably proscribed” under the law.
Judge James L. Dennis dissented in part, warning that the majority “turns a blind eye to the Texas Legislature’s avowed purpose: a statewide ‘drag ban.’” He pointed to legislative records and public comments from Texas officials such as Gov. Greg Abbott and Lt. Gov. Dan Patrick, who celebrated the law’s passage as a ban on drag shows.
The panel said Hittner must reconsider the case under the U.S. Supreme Court’s Moody v. NetChoice standard, which allows facial First Amendment challenges only if a law’s unconstitutional applications “substantially outweigh” its valid ones.
The case will return to Houston for reconsideration under the new test, leaving Texas’s drag performers and Pride organizers facing renewed uncertainty.
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