Texas court blocks law protecting children from sexually explicit events

Drag performers acted out a twerking demonstration in a Houston courtroom earlier this week while arguing against a law that would protect children from attending sexually explicit events.

Late Thursday, U.S. District Judge David Hittner issued a temporary restraining order blocking Senate Bill 12, which would have taken effect today.

The law prohibits the “exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” at events attended by children under 18. Violators would have been fined up to $10,000 and punished with up to one year in jail.

LGBTQ groups and drag performers argued the law targeted drag shows—though it did not mention the events—as performers typically use the prosthetics and accessories indicated in the law.

In a two-day hearing earlier this week, the challengers, represented by the American Civil Liberties Union of Texas, claimed that the law violates both First and 14th Amendment rights. They argued that drag performances are a political, healing, and expressive form of performance. During their testimony, drag performers demonstrated twerking, a sexually suggestive dance move, and described prosthetic breasts.

Advocates argue the legislation protects children from being exposed to obscene content not protected by the First Amendment. “The text of the [law] doesn’t target anyone, doesn’t single out any person or group,” said Adam MacLeod, a professor of law at St. Mary’s University School of Law in San Antonio, Texas. “What it does is it prohibits sexual conduct in the presence of minors.”

Courts have long ruled that it is constitutional to protect minors from sexual conduct, said MacLeod. In 2019, an Arkansas court upheld zoning regulations that prevented adult bookstores from being located near public parks or schools.

In 2023, legislators in 14 states introduced at least 26 bills regarding drag performances, according to The Washington Post. Six states have passed bills restricting drag or “adult” performances, according to the Movement Advancement Project, an LGBTQ organization.

But several states have struck down legislation similar to the Texas bill. In June, a federal judge in Tennessee ruled that a law criminalizing “adult cabaret entertainment” was unconstitutional because it was “vague and substantially overbroad.” Courts also blocked legislation in Florida and Montana this year after legal challenges.

The judge’s order blocking the Texas law will stand for 14 days or until the court reaches a final decision, whichever is earlier.

The nonprofit Texas Values filed a brief encouraging the court to uphold the law. Jonathan Saenz, the group’s president, is confident the restraining order will be overturned.

“If it’s not today, [then] tomorrow, the next week or so … [it’s] not going to stand,” he said. “It’s sad that there’s a federal court judge in Texas that [has] now made it easier for adult men to be almost completely naked in front of kids.”

Saenz added that there has been a trend of LGBTQ activists exposing children to sexual content across Texas. In 2021, drag queens joined in a Christmas parade in Taylor, Texas. Two men dressed as women and wearing large prosthetic breasts rode on one of the floats, while children sat behind them, according to Fox News.

“Whether you’re Republican or Democrat, whether you’re on the left or the right, there are people that agree [that] sexual performances, including drag queen shows, do not belong in front of kids,” said Saenz. “You don’t need a law degree to figure out that this law should be upheld and we should be able to protect kids.”