Federal Judge Strikes Down Texas Drag Show Ban for Second Time

A federal judge in Texas permanently blocked the state from enforcing a 2023 law restricting drag shows on August 26, marking the second time U.S. District Judge David Hittner ruled the measure unconstitutional. Senate Bill 12 would have fined businesses up to $10,000 and charged performers with a Class A misdemeanor punishable by up to one year in jail. Hittner found the law too vague and broad, potentially affecting sports, comedy, and other protected performances.

Why the law failed twice

Judge Hittner first declared Senate Bill 12 unconstitutional in September 2023, before it took effect. The 5th U.S. Circuit Court of Appeals then reversed that decision in November 2025, sending the case back to Hittner with instructions to reassess. The law went into effect in March 2026 while litigation continued. On August 26, Hittner reached the same conclusion: the law violates the First Amendment because it is written too broadly and vaguely. He wrote that a single moment of eroticism could condemn an entire performance to criminal or civil penalties.

What the law prohibited and who challenged it

Senate Bill 12 banned sexually oriented performances in front of anyone under 18 and on public property. The law did not explicitly mention drag but applied to performances with certain sexual conduct or nudity that appeal to the prurient interest in sex. Businesses faced fines up to $10,000 for violations, while performers could be charged with a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine. The lawsuit was originally filed by the American Civil Liberties Union of Texas on behalf of drag performer Brigitte Bandit and two drag production companies, Extragrams LLC and 360 Queen Entertainment LLC.

How the vague definitions threaten other performances

Hittner found that Senate Bill 12 fails to define key terms like visual performance and prurient interest in sex, leaving performers and businesses without clear guidance. The judge noted the law’s definitions are so broad they could potentially penalize athletes, comedians, cosplayers at conventions, and impersonators of Dolly Parton or Elvis Presley. Hittner wrote that countless exhibitions including sports matches, cheerleading, dance contests, karaoke, and musicals could face penalties under the law’s language. He concluded the vast majority of the law’s applications violate the First Amendment because all performances it targets are constitutionally protected and are prohibited based on content and viewpoint.

What happens next for Attorney General Paxton

Texas Attorney General Ken Paxton, who is running for Senate, was the sole defendant after the appeals court removed two pride groups from the lawsuit. The ruling denies his motion for a new trial and prevents him from enforcing the law. Paxton has not immediately commented on the decision. The order is described as permanent and final, though Paxton could potentially appeal to the 5th Circuit again.

Final Thoughts

With Hittner’s second ruling blocking Senate Bill 12, Texas cannot enforce restrictions on drag performances. The decision protects First Amendment rights but leaves open the possibility of further appeals by state officials.

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