Baytown drag performer reacts after judge strikes down Texas restrictions

BAYTOWN, Texas - A Baytown drag performer says a federal judge’s decision striking down Texas’ restrictions on certain performances in front of minors brings some relief after years of uncertainty.

What we know:

U.S. District Judge David Hittner once again ruled Senate Bill 12 violates the First Amendment, finding the law was written so broadly it could have applied to everything from drag shows to ballet, Broadway productions and even Dolly Parton.

Hittner declared the law unconstitutional and permanently blocked Texas Attorney General Ken Paxton from enforcing it.

The law, passed in 2023, targeted what it called "sexually oriented performances" on public property or in front of minors. It allowed civil penalties against businesses and criminal penalties against performers, including up to one year in jail. 

WHAT THE JUDGE FOUND:

Hittner found the law was both overbroad and unconstitutionally vague.

The judge said terms such as "lewd" and "prurient interest in sex" were not clearly defined, leaving performers and venues without enough guidance about what could lead to penalties.

In his 34-page ruling, Hittner wrote that the law could reach constitutionally protected performances, including theater, comedy, ballet, karaoke, cheerleading, concerts and sporting events.

WHY DOLLY IS MENTIONED:

The ruling mentions Dolly Parton several times to demonstrate how subjective the law’s standards could be.

Hittner wrote that Parton’s low-cut costumes, exaggerated appearance and movements onstage could potentially be considered sexual by some people. An impersonator wearing a prosthetic breastplate could also have been exposed to penalties under the law.

The judge did not suggest Parton was actually at risk of prosecution. Instead, he used her as an example of how the law could reach well beyond drag performances.

"The court yesterday said that even something like Elvis shaking and shimmying his hips or Dolly Parton walking around stage showing some cleavage could be considered sexual by some people in our society," Brian Klosterboer, an attorney with the ACLU of Texas, told FOX 26.

IMPACT ON PERFORMERS:

Baytown drag king Barry Mii said the years-long legal fight left performers questioning where and how he could hold shows.

Barry said the possibility of losing performance spaces felt personal, particularly because drag kings already receive fewer opportunities and less visibility than drag queens.

"I’m just here to, like, play dress-up and just have a good time—like, shake a little shimmy this way, that way—and, like, hopefully you give me a dollar," Barry said. "It’s nothing more, really, than that."

Barry said performers understand that different shows are intended for different audiences. Some are family-friendly, while others are held inside adult-only venues.

At one show intended only for adults, Barry said a family that arrived with children was asked to leave because performers were concerned about the potential consequences under SB 12—even though nothing inappropriate was taking place.

OTHER LAWS STILL APPLY:

The ruling does not eliminate Texas laws governing obscenity, indecent exposure or other conduct that is already illegal in front of children.

Klosterboer said that distinction was central to the case. The ACLU argued SB 12 went further by threatening constitutionally protected expression that someone might subjectively consider sexual.

"Texas has long had other laws on obscenity or indecent exposure and things like that," Klosterboer said. "For the legislators and others who actually are concerned about inappropriate performances, those have already been restricted in Texas under existing laws."

HOW THE CASE GOT HERE:

Hittner initially blocked SB 12 in 2023, shortly before it was scheduled to take effect.

The Fifth Circuit Court of Appeals later vacated that injunction and sent the case back to the district court for additional analysis. Hittner applied the legal tests requested by the appeals court and again concluded the law was unconstitutional.

The remaining plaintiffs in the case were Extragrams, 360 Queen Entertainment and Austin-based drag performer, Brigitte Bandit. Paxton was the sole remaining defendant.

What's next:

Paxton says he plans to appeal the latest ruling.

For now, however, the attorney general is permanently prohibited from enforcing SB 12.

Barry said the ruling brings some relief, although the possibility of another appeal remains in their mind.

Hittner ended the ruling with a direct message for people who find the performances described in the case offensive: "Just don’t go."