SAN ANTONIO, Texas — The U.S. Court of Appeals for the Fifth Circuit has lifted a lower court injunction and allowed Texas’ Senate Bill 12 to take effect, clearing the way for enforcement of new restrictions on certain drag performances in venues where minors are present. The ruling reverses a federal district court’s earlier order that had blocked the law, concluding that Texas may regulate performances deemed “sexually oriented” when accessible to children.
The appellate decision represents a significant legal victory for state officials, including Attorney General Ken Paxton, who defended the statute as a child-protection measure. Opponents, including performers and civil liberties groups, argue the law infringes on constitutionally protected expression and disproportionately targets drag performers.
At the center of the legal fight is not merely drag as an art form, but how Texas defines “sexually oriented conduct” — a term embedded in existing state penal law and incorporated into SB 12.
What SB 12 Does
Senate Bill 12 amends Texas law to prohibit certain performances on public property or in the presence of minors if the performances include “sexual conduct,” as defined by state statute. The law does not use the word “drag” in its operative prohibitions. Instead, it applies to performances that appeal to the prurient interest in sex and involve specific forms of sexualized conduct.
Under the statute, a person commits an offense if they engage in a sexually oriented performance on public property or in the presence of an individual younger than 18 years of age. The law classifies violations as a Class A misdemeanor, with enhanced penalties for repeat offenders.
Supporters argue the statute mirrors longstanding restrictions on sexually explicit performances involving minors. Critics contend it was drafted in response to drag events and creates uncertainty for performers who do not engage in explicit conduct.
The Legal Definition of “Sexually Oriented”
Texas does not rely on a vague or novel definition. Instead, SB 12 draws from the Texas Penal Code’s existing terminology.
Under Texas law, “sexual conduct” includes:
- Sexual intercourse;
- Deviate sexual intercourse;
- Sexual contact; and
- The exhibition of the genitals, anus, or female breast below the top of the areola.
“Sexual contact” is further defined as any touching of the anus, breast, or genitals of another person with intent to arouse or gratify sexual desire.
Additionally, “deviate sexual intercourse” includes contact between the genitals of one person and the mouth or anus of another, or penetration of the genitals or anus with an object.
The statute’s application hinges not on costume or identity, but on whether a performance includes conduct that meets these statutory definitions and is intended to appeal to prurient interests.
In court filings, state attorneys emphasized that the law regulates sexually explicit conduct — not viewpoint or identity — and parallels restrictions already applied to strip clubs and adult cabarets.
The Fifth Circuit’s Reasoning
The Fifth Circuit panel concluded that the district court erred in issuing a sweeping injunction blocking the law before it could take effect. The appellate judges found that Texas demonstrated a substantial likelihood of success on the merits of its argument that the statute regulates conduct, not protected speech.
The court emphasized the state’s “compelling interest” in shielding minors from exposure to sexualized performances, particularly on public property.
While the panel did not issue a final ruling on every constitutional question raised, it determined that the lower court’s injunction was too broad at this preliminary stage.
The earlier district court ruling had found portions of the law unconstitutionally vague, suggesting performers might self-censor out of fear that ordinary drag performances could be prosecuted. The appellate panel, however, concluded that the statutory definitions were sufficiently grounded in established penal law.
The Plaintiffs’ Arguments
The lawsuit challenging SB 12 was filed by performers and advocacy organizations, including the ACLU of Texas. Plaintiffs argued the statute violates the First Amendment by targeting expressive conduct based on content.
They contended that drag is a form of theatrical and political expression protected under the Constitution, and that the law chills speech by creating ambiguity around what constitutes a violation.
In earlier hearings, plaintiffs asserted that drag brunches, Pride events, and theatrical performances could be swept into the law’s scope even if they contained no explicit sexual activity.
The Fifth Circuit did not definitively resolve those broader First Amendment questions but concluded that the challengers had not met the threshold to justify blocking enforcement statewide.
Paxton’s Response
Attorney General Ken Paxton hailed the ruling as validation of Texas’ authority.
In a statement following the decision, Paxton said the court affirmed Texas’ right to protect children from “sexually explicit performances.” His office argued throughout the litigation that the statute mirrors restrictions long upheld by courts when applied to adult entertainment establishments.
Paxton’s office has been active in defending a series of social policy measures in federal court, often before the Fifth Circuit, which has become a focal point for constitutional litigation involving Texas law.
What Happens Next
The law is now set to take effect in March 2026 unless further judicial intervention occurs. Plaintiffs may seek rehearing before the full Fifth Circuit or petition the U.S. Supreme Court for review.
In the meantime, venue owners and performers must evaluate their programming in light of the statutory language. Legal analysts note that enforcement will likely hinge on factual determinations about the content of specific performances.
For prosecutors, the burden will be to demonstrate that a performance involved conduct meeting the precise statutory definitions — not merely gender expression, theatrical exaggeration, or cross-dressing.