Ken Paxton appeals Texas drag performance law injunction

In a 50-page briefing filed Tuesday, Paxton requested the U.S. Court of Appeals for the Fifth Circuit in New Orleans to take up the permanent injunction issued against Senate Bill 12 last year.

AUSTIN (KXAN) — Texas Attorney General Ken Paxton asked a federal appeals court to reverse another judge's decision and let the state enforce its law that would restrict and even criminalize drag performances.

In a 50-page briefing filed Tuesday, Paxton requested the U.S. Court of Appeals for the Fifth Circuit in New Orleans to take up the permanent injunction issued against Senate Bill 12 last year. He previously promised to appeal when a federal judge in Houston blocked the law from taking effect in September after five plaintiffs sued Paxton, two district attorneys and their counties and one city.

In his lengthy ruling last year, U.S. District Judge David Hittner concluded his order by saying Senate Bill 12 “is an unconstitutional restriction on speech,” adding he believed it violates the First and Fourteenth Amendments. That handed a legal victory to LGBTQ+ advocates and the plaintiffs, which included the Austin-based drag performer Brigitte Bandit and local drag production company Extragrams.

Paxton refuted that judge's argument in his formal appeal, claiming the plaintiffs did not show how the law would harm them.

"The Court should reverse and render judgment for the Attorney General because the district court lacked jurisdiction," the attorney general wrote. "To start, because Plaintiffs offered no evidence that they wish to participate in highly sexualized performances in front of minors, Plaintiffs failed to establish the most fundamental aspect of Article III standing: an injury. Plaintiffs also failed to establish that their non-existent injury is traceable to the Attorney General, who may enforce S.B. 12 only against violators that “control the premises of a commercial enterprise.”

It remains unclear whether the judges who make up the Fifth Circuit Court of Appeals will take up Paxton's appeal.

Brian Klosterboer, an attorney for the American Civil Liberties Union of Texas, shared a statement Thursday evening reacting to Paxton's filing. The ACLU of Texas is one of the advocacy organizations that worked to represent those who brought the initial lawsuit against the state.

"A federal judge correctly found that the Texas Drag Ban, S.B. 12, is unconstitutional under five independent grounds because it's too broad and vaguely written. S.B. 12 threatens the free expression of countless Texans and we are grateful that this law has never gone into effect," Klosterboer said. "This law is just another attack against our state's LGBTQIA+ community--especially transgender Texans. Like far too many laws recently, it makes our state less free and fair."

What Senate Bill 12 aims to do

Gov. Greg Abbott signed SB 12 on June 18 after lawmakers passed the legislation through both chambers during the regular legislative session. However, the bill received significant pushback from advocates for the LGBTQ+ community and others over their concerns about it possibly criminalizing drag performances and venues that host shows in the state.

While the word “drag” is not used in the law, a “sexually oriented performance” is defined broadly in the law to be “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation;” “the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal;” “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals;” “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person;” and “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”

In Paxton's appeal, he notes the absence of certain language while challenging whether the law violates First Amendment protections.

"Contrary to Plaintiffs’ repeated suggestions, S.B. 12 does not ban the theatrical 'drag shows' they wish to stage or perform that involve the mere conduct of dancing while dressed in costume," Paxton's brief stated.

A business owner who hosts a sexually oriented performance in front of someone younger than 18 could face a fine up to $10,000, while a performer engaged in a sexually oriented performance “on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child” could get charged with a misdemeanor. Additionally, a city or a county “may not authorize a sexually oriented performance,” according to the law.