Texas Drag Ban Struck Down Again, and Headed Back to the Fifth Circuit

On August 25, a federal judge in Houston struck down Texas Senate Bill 12 for the second time since 2023, declaring the state’s restriction on “sexually oriented performances” unconstitutional and permanently barring the attorney general from enforcing it. U.S. District Judge David Hittner, of the Southern District of Texas, wrote that Warren Kenneth Paxton is “immediately and permanently enjoined from enforcing Texas Senate Bill 12.”

Paxton said within hours that he would appeal. The honest way to read this is as a strong ruling that is not yet a settled one: the same court order was suspended once before by the Fifth Circuit. The longer arc of these repeating fights runs through our transgender history archive.

What the court held

S.B. 12, signed in June 2023, works through three mechanisms: civil penalties for commercial venues that host a “sexually oriented performance” where a minor is present, authority for cities and counties to regulate such performances, and criminal liability for the performers themselves. The statute defines the term as a “visual performance” in which someone is nude or engages in “sexual conduct” and which “appeals to the prurient interest in sex.”

Hittner found the law unconstitutionally vague under the Fourteenth Amendment because terms like “prurient interest in sex,” “lewd” and “performer” are never defined, leaving no way for “a person of ordinary intelligence” to know what is forbidden. He found it facially overbroad because “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” And he found it a content- and viewpoint-based restriction on protected speech that fails even intermediate scrutiny.

The vagueness point is the one that does the most work. “It is not unreasonable to read S.B. 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation,” the court wrote, in the memorandum opinion and order signed August 25. The opinion also notes that the legislative record aimed squarely at drag, quoting the governor’s own announcement that he had signed a law “banning drag performances in public.”

How it got here

The suit was filed in August 2023. Hittner held a consolidated trial that month and declared the law unconstitutional that September. The Fifth Circuit vacated that injunction in November 2025, issued a further opinion in February 2026 sending the vagueness claim back for more analysis, and the law took effect in the interim. Proceedings resumed in March; the state’s motion to dismiss was denied in June. This week’s order is the district court’s answer on remand — and it is now positioned to go back up to the same appeals court that undid it once.

Both sides of it

Paxton called the decision “profoundly flawed,” said it “endangers our children,” and pledged to appeal immediately. Stated at its strongest: a state does have an interest in what minors are exposed to, and supporters say the law reaches only performances that are sexual by definition, not costume or gender expression.

The plaintiffs — Extragrams LLC, 360 Queen Entertainment LLC and the Austin performer Brigitte Bandit — argued the definitions are so loose that they swallow protected art. “Drag has a rich history as a refuge of joy and liberation for countless Texans,” ACLU of Texas attorney Brian Klosterboer said in the ACLU of Texas announcement of the ruling. The organization says two Pride groups that originally joined the case were dropped after the Fifth Circuit’s standing decision. Loose definitions are a recurring feature of this era of lawmaking, as we saw when state legislatures became the central battleground over transgender policy.

What it does and does not say about us

One thing to be clear-eyed about: this opinion is about drag. It does not mention transgender people, and drag is a performance tradition, not a gender identity. Conflating the two has never served either.

But the reason so many of us read these rulings closely is that the legal machinery is shared. A statute that cannot say what a “performer” is, or where costume ends and conduct begins, is a statute that gets applied by whoever is holding it. The art at stake is part of our record too — the afternoons at Wigstock, the nights watching Lypsinka turn lip-sync into something closer to literature.

A permanent injunction is in force today. It may not be in force in a year. That is the part I have learned not to skip past.