The Texas drag show law, Certain Sexually Oriented Performances Prohibited, is the new Texas offense that bans drag shows. In the wake of a sudden legislative interest in regulating gender-conforming behavior, the legislature passed this law making drag show performances a crime in an effort to stop children from seeing drag shows, but the law casts a much wider and vaguer net – which is a serious problem. This a brand new law for 2023.

The Texas legislative session in 2023 was marked by a tremendous amount of political showboating, especially around gender issues related to trans people, mostly to impress conservative voters and establish political bona fides, and this new law is a result of that political gamesmanship. It’s an especially broad law, will rarely if ever be used, and won’t likely stand up in a constitutional challenge without amendment within weeks of passing the legislature, a federal court ruled the law unconstitutional.

Among other things the law prohibits “visual performances” that feature any performers who engage in “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” that “appeals to the prurient interest in sex” on public property or private property where there might be a child. Learn more about the Certain Sexually Oriented Performances Prohibited offense below.

What is the current Texas law about Certain Sexually Oriented Performances Prohibited?

The current Texas law defines the offense of Certain Sexually Oriented Performances Prohibited in Penal Code Section §43.28 as follows:^[1]

(b) A person commits an offense if, regardless of whether compensation for the performance is expected or received, the person engages in a sexually oriented performance:

(1) on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child; or

(2) in the presence of an individual younger than 18 years of age.

This offense was created by the 88th Texas Legislature in 2023,^[2] effective September 1, 2023.^[3]

As with other laws that are designed to apply to “the prurient interest in sex” – it’s unclear what the prurient interest in sex means.^[4] These are common “magic words” that legislators use to mark a distinction without a difference in order to attempt to survive a first amendment challenge. Similarly unclear is what exactly is meant by “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.” It seems like that might apply to dancing with sexy clothes on.

I doubt this will stand up on appeal Within weeks of being signed into law by the governor, a federal judge ruled the law to be unconstitutional.^[5] The state will appeal.^[6] Expect a decision from the Fifth Circuit in 2024, and perhaps even a Supreme Court ruling in an upcoming term.

What is the Texas drag show law?

The Texas drag show law is called Certain Sexually Oriented Performances Prohibited, and it is found in Chapter 43 of the Texas Penal Code at Section 43.28.^[7] effective September 1, 2023.^[8] The law was intended to prohibit drag show performances to minors,^[9] but it ends up applying to basically anyone dancing in a sexy manner wearing sexy clothes.

What is the punishment for Certain Sexually Oriented Performances Prohibited?

Certain Sexually Oriented Performances Prohibited is punished as a Class A misdemeanor.^[10]

Is the Texas drag show law constitutional?

Shortly after the law was signed by the governor and went into effect, a federal judge in the Southern District of Texas (a Reagan apointee, in fact) held this law banning drag shows in Texas unconstitutional and issued a permanent injunction.^[11] The state will appeal the ruling to the Fifth Circuit, and regardless of any ruling by the Fifth Circuit, the case will almost certainly be appealed up to the Supreme Court. Take a deeper dive into case that held the law unconstitutional here.

The law has received quite a bit of media attention.^[12] No appellate court has made any final determination on the constitutionality of this law, and the appellate litigation will take some time to complete.

I predicted this challenge as soon as this law was signed, and you can see my earlier criticism above.

How can I be charged under the Texas drag show law?

You can be charged with Certain Sexually Oriented Performances Prohibited if the state’s attorneys believe that each of the elements of 43.28 as described in the section above have been met.

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Legal References:

^1. Texas Penal Code §43.28^2. SB 12, 88th Texas Legislature (RS), Section 3^3. SB 12, 88th Texas Legislature (RS), Section 5^4. Prurient interest is undefined in Texas state law, but the term is borrowed from the Supreme Court’s Miller test for obscenity. But none of the accompanied language is present in this law. The Miller test for obscenity includes (1) whether “the average person, applying contemporary community standards” would find that the work, “taken as a whole,” appeals to “prurient interest” (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, “taken as a whole,” lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 21, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).^5. See The Woodlands Pride, Inc. et al v. Paxton et al “The Court hereby DECLARES that S.B. 12 is an UNCONSTITUTIONAL restriction on speech. The Court concludes that S.B. 12 violates the First Amendment as incorporated to Texas by the Fourteenth Amendment of the United States Constitution. The Court further ORDERS that Defendant Warren Kenneth Paxton, Defendant Montgomery County, Texas, Defendant Brett Ligon, Defendant City of Abilene, Texas, Defendant Taylor County, Texas, Defendant James Hicks, Defendant Delia Garza, Defendant Joe D. Gonzalez are immediately enjoined from enforcing S.B. 12. (Signed by Judge David Hittner)”^6. Dan Patrick said the bill is “about protecting young children and families. This story is not over.”^7. Texas Penal Code §43.28, as enacted by SB 12, 88th Texas Legislature (RS), Section 3^8. SB 12, 88th Texas Legislature (RS), Section 5^9. Multiple public statements from officials and legislature explicitly state or strongly suggest that SB 12 was meant to be a ban on drag shows. Lieutenant Governor Dan Patrick said, “it is shocking parents would allow their young children to be sexualized by drag shows” in his official adoption of the Committee report. A Texas state representative made comments expressing his work to “protect children from explicit, hyper-sexual drag performances in Texas. See The Woodlands Pride, Inc. et al v. Paxton et al, p.9^10. Texas Penal Code §43.28(c)^11. See The Woodlands Pride, Inc. et al v. Paxton et al^12 Texas law restricting drag performances ruled unconstitutional by federal judge