Austin performer joins new lawsuit to block Texas drag performance law

Jul 27, 2023

by: Will DuPree, Cora Neas

Posted: Aug 3, 2023 / 09:47 AM CDT

Updated: Aug 4, 2023 / 02:45 PM CDT

AUSTIN (KXAN) — An Austin-based drag performer added her name to a lawsuit filed Thursday aimed at blocking a Texas law that the plaintiffs argue would amount to a “drag ban” in the state.

Brigitte Bandit, who went viral earlier this year for testifying against the legislation while wearing a pink wig and dress, is among the plaintiffs now suing the interim Texas attorney general and other officials over Senate Bill 12, which is set to go into effect on Sept. 1. The other groups that filed the lawsuit are the ACLU of Texas, two community Pride organizations and a couple of drag performance companies, including Extragrams based in Austin.

According to a news release announcing the lawsuit, the ACLU of Texas called the law “unconstitutional,” arguing it violates their rights protected by the First and Fourteenth Amendments. It also contends the law “threatens the livelihood and free expression of many Texans, including drag performers.”

Brian Klosterboer, an attorney with the ACLU of Texas, told KXAN the way the law is written could open up legal consequences for more than just drag performers.

“This law is incredibly discriminatory. It’s yet another attack on LGBTQIA+ Texans by the legislature this year,” Klosterboer said during an interview Thursday. “It violates the First Amendment because it clearly and discriminatorily targets drag artistry and performance, but it’s also so incredibly broad and vague that it targets entire genres of performing arts that could be considered sexual by someone in any way. So it could impact Broadway musicals. It could impact karaoke nights at restaurants. It could really impact any kinds of performance or visual presentation.”

The defendants listed in the lawsuit include interim Attorney General Angela Colmenero, whom Gov. Abbott appointed last month to lead the office while Ken Paxton is suspended awaiting the outcome of the Senate impeachment trial. Travis County Attorney Delia Garza is also being sued along with the Bexar County district attorney, the Taylor County district attorney, The Woodlands Township, Montgomery County and the Montgomery County district attorney.

Garza said in a statement she appreciates what the ACLU is trying to do to “bring some clarity to a law that has constitutional concerns and will be difficult to enforce.”

“I continue to hope that in the name of true public safety, our state leaders will one day focus on actual public safety threats, like gun violence, instead of legislation like SB12 which will have little to no effect on the day to day operations of a community and its public safety needs,” Garza wrote.

Gov. Greg Abbott signed SB 12 on June 18 after mostly Republican lawmakers pushed 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.

Before state lawmakers ultimately approved the legislation, they removed direct mentions of drag performances or gender non-conformity from the language. The bill initially filed by Sen. Bryan Hughes, R-Mineola, defined a “sexually oriented performance” to include “a male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.” However, that’s no longer in the final version adopted.

Hughes shared his reaction to news of the lawsuit in a statement released Thursday afternoon.

“Surely we can agree that children should be protected from sexually explicit performances,” Hughes said. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”

A “sexually oriented performance” is defined more broadly in the law now 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 gesticulationsusing accessories or prosthetics that exaggerate male or female sexual characteristics.”

A business owner who hosts such a 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.

This is not the first lawsuit filed against legislation signed by the governor this year. Five Texas families with transgender children as well as three doctors are now suing the state to block Senate Bill 14, a law that would ban young people from receiving certain health care options and put medical licenses in jeopardy.

Two Texas bookstores also filed a lawsuit in hopes of blocking a state law from going into effect that would require sellers to rate books based on their sexual content and possibly result in the removal of titles from school library shelves.

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