Texas Drag Show Limits Struck Down Again by Judge

Texas cannot enforce its restrictions on certain public drag shows after a federal judge on Tuesday declared the 2023 law unconstitutional for the second time. U.S. District Judge David Hittner ruled that Senate Bill 12 violates the First Amendment, finding its definitions overly broad and its restrictions a form of content and viewpoint discrimination, according to AP News.

Background: A Yearslong Legal Battle

Hittner initially declared SB 12 unconstitutional in September 2023, just months after Gov. Greg Abbott signed the legislation into law. The law prohibits “sexually oriented performances” presented on public property or in the presence of individuals younger than 18, with performers facing Class A misdemeanor charges of up to one year in jail and $2,000 in fines, while businesses could face fines up to $10,000 per violation.

The case took a dramatic turn in November 2025 when the 5th U.S. Circuit Court of Appeals unblocked the law and returned it to Hittner with specific instructions on how to reassess it. The law went into effect on March 18, 2026, marking the first time it was enforceable since its passage.

The New Ruling

In his latest ruling, Hittner applied the framework established by the U.S. Supreme Court’s 2024 decision in Moody v. NetChoice, finding that SB 12’s definitions of “visual performances,” “nude,” and “prurient interest in sex” are so broad that they could potentially criminalize mainstream performances by artists like Dolly Parton, Elvis Presley, and Miley Cyrus.

“The vast majority of the law’s numerous applications violate the First Amendment because all the performances that it has an actual impact on are constitutionally protected and are targeted for prohibition based on content and viewpoint,” Hittner wrote, as reported by The Texas Tribune.

The judge noted that “a single moment of eroticism could condemn an entire performance to criminal or civil penalties,” and cited cheerleading, dancing, live theater, and other common public activities as potentially affected by the law’s sweeping language.

In a memorable conclusion, Hittner wrote: “Finally, for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go.”

Reactions from Both Sides

Texas Attorney General Ken Paxton, who is running for the U.S. Senate with President Trump’s endorsement, immediately announced he would appeal the ruling. “This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” Paxton said, according to UPI. “I will appeal this decision immediately and continue to fight to protect our kids.”

Civil rights advocates celebrated the decision. “Today’s decision confirms that the Legislature’s attempt to ban drag performances was unconstitutional from start to finish,” said Brian Klosterboer, senior staff attorney at the ACLU of Texas, which represents the plaintiffs. “Drag has a rich history as a refuge of joy and liberation for countless Texans, and it’s not going anywhere.”

Brigitte Bandit, a drag performer and plaintiff in the case, said: “We use our performances to assert liberation, power, and joy with our community. As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community.”

The Dolly Parton Connection

The ruling drew particular attention for its references to Dolly Parton, who died the same day the decision was issued. Hittner cited Parton alongside Elvis Presley and Miley Cyrus as examples of performers whose work could potentially be penalized under the law’s broad definitions, as USA Today reported.

“Just as many people criticized Elvis’s signature hip gyrations and were offended by his display of male sexuality, chastised Dolly Parton as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure, and shamed Miley Cyrus for ‘twerking’ on stage during a live performance at the 2013 MTV Video Music Awards, there are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote.

Parton, a longtime champion of the drag and LGBTQ+ communities, had given Bandit a rhinestone guitar as a gift in 2023.

Legal Significance

The ruling represents a significant reaffirmation of First Amendment protections for expressive conduct. Courts have consistently found that drag performances are expressive content afforded constitutional protection, and The Guardian noted that Texas was one of several states in 2023 to pass legislation restricting drag performances amid a right-wing backlash to increasing queer and transgender rights.

Courthouse News reported that Hittner found the law constitutes both content and viewpoint discrimination, noting that “Even if S.B. 12 were somehow content-neutral (an argument the Attorney General has never advanced), it still prohibits huge swaths of constitutionally protected performances.”

What’s Next

Paxton has announced he will appeal the ruling to the 5th Circuit, and the case could ultimately reach the U.S. Supreme Court. Sen. Bryan Hughes, the Republican who authored SB 12, stated in 2023 that he would defend the law “all the way to the Supreme Court if that’s what it takes.”

For now, Texas cannot enforce SB 12, and drag performers and venues can operate without fear of prosecution under this law. The ruling also denied Paxton’s request for a supplemental trial and new discovery in the case.

As the legal battle continues, the case remains a focal point in the broader national debate over LGBTQ+ rights, free expression, and the limits of state regulation of artistic performances.