Drag is art and art is free speech
upon learning of Hittner’s decision. She said in a separate statement that she is grateful. “My livelihood and community has seen enough hatred and harm from our elected officials,” she said. “This decision is a much needed reminder that queer Texans belong and we deserve to be heard.”
SB 12 was adopted in the recent session of the Texas legislature in response to the anti-queer hysteria currently ascendant in the Republican party. It bans any performance in a public space, or where minors are present, that displays a “prurient interest in sex.” It also prohibits the “exhibition or representation” of “actual or simulated” male and female genitals “in a lewd state,” along with “sexual gesticulations using accessories or prosthetics.
Hittner’s overarching message is that drag is free speech – that it is expressive – and that SB 12 violates that freedom. “Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” Hittner writes. “The Court finds it is evident drag shows express either pure entertainment or, like most types of expressive art, an underlying deeper message.
Hittner also ruled that SB 12 is badly written – that it is unconstitutionally overbroad and vague. “The Court sees no way to read the provisions of SB 12 without concluding that a large amount of constitutionally·protected conduct can and will be wrapped up in [it],” Hittner ruled. “It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation.
As the plaintiffs released statements celebrating their unconditional victory, they couldn’t help but make reference to the attacks on the queer community that the new law is part of. “This win helps to bring back the joy and acknowledges the integrity and professionalism of this fabulous art form,” said
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