Texas judge temporarily stops ban on sexualized performances for children.
Texas Ban on Sexualized Drag Performances for Kids Temporarily Blocked
A federal judge has granted a two-week restraining order against Texas’ ban on sexualized drag performances for kids, following a lawsuit filed by LGBT advocates. This means that the legislation will not be implemented for now.
“Based on evidence and testimony presented at the hearing, the court finds there is a substantial likelihood that SB 12 as drafted violated the First Amendment of the United States Constitution under one or more of the legal theories put forward by the plaintiffs,” U.S. District Judge David Hittner wrote in the temporary restraining order (pdf) on Aug. 31.
Judge Hittner also agreed with LGBT advocates that allowing the law to take effect would likely cause them “irreparable harm.”
The judge’s temporary restraining order will last 14 days but does not necessarily mean a permanent injunction against the measure will be granted.
The legislation in question, Senate Bill 12, was signed into law by Gov. Greg Abbott in late June and was set to go into effect on Sept. 1.
Under the bill, sexually oriented performances would be banned from taking place on public property in the presence of an individual who is younger than 18 years old.
The bill defines sexually-oriented performances as a performance in which the performer is nude, engages in sexual conduct, and the performance “appeals to the prurient interest in sex.”
Measure Needed to ‘Protect Children’
Sexual conduct, as defined by the bill, is “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation,” the “actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal,” and the “exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals.”
It also includes actual contact or simulated contact between “one person and the buttocks, breast, or any part of the genitals of another person; or the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”
The bill states that businesses that host sexually-oriented performances risk a fine of up to $10,000 per violation if they allow the shows to take place in the presence of an individual younger than 18 years of age.
Republican lawmakers have argued that the legislation is necessary to protect children from being sexualized and uphold public decency. This has prompted dozens of other states, including Tennessee, Florida, and Montana, to roll out similar laws.
The law does not specifically state that drag performances are banned. However, LGBT advocates argue that the bill’s definition of performance is too broad and unconstitutional. Led by the American Civil Liberties Union (ACLU) of Texas, they filed a lawsuit against the state earlier this month.
Bill ‘Threatens Free Expression of Many Texans’
In their lawsuit (pdf), plaintiffs argue that the measure “unconstitutionally singles out drag performances as a disfavored form of expression” and that the state has “threatened the livelihood and free expression of many Texans, including drag performers across” Texas by enacting this law.
“The First and Fourteenth Amendments prohibit such strident attempts to regulate and ban free expression, and SB 12 should be declared unconstitutional and enjoined,” they wrote in their lawsuit. The plaintiffs and the state Attorney General’s Office have until Sept. 6 to present their legal and factual theories of the case to the judge before a final decision is made.
ACLU Texas Attorney Brian Klosterboer welcomed the judge’s order, calling it a “much-needed reprieve for all Texans, especially our LGBTQIA+ and transgender community, who have been relentlessly targeted by our state legislature.”
“This law was obviously unconstitutional from the day it was first proposed, and we are grateful that the court has temporarily blocked it,” he said in a statement. “Senate Bill 12 is vague, overbroad, and censors free expression. If allowed to take effect, S.B. 12 will make our state less free, less fair, and less inclusive.”
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