The 5th U.S. Circuit Court of Appeals ruled on Wednesday that Texas’ drag ban can go into effect starting March 18.

Last November 2025, the court reversed a lower court ruling and said the plaintiffs lacked the necessary legal standing to challenge the law, seeing as their drag performances were insufficiently sexual to risk persecution under the law’s wording. The more recent Wednesday ruling reached the same conclusions and denied the plaintiffs’ request for a rehearing of the case.

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In June 2023, Texas Gov. Greg Abbott (R) passed S.B. 12, a law criminalizing “sexually explicit” performances in the presence of minors. Though the law didn’t specifically mention drag, Abbott himself later declared that the law banned public drag performances.

The law defined such performances as those in which “a male performer [is] exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.”

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The law also considers a performance as “sexually explicit” if it “appeal[s] to the prurient interest in sex” and the performer commits any “actual contact or simulated contact” between one person and another person’s “buttocks, breast, or any part of the genitals.”

Under the law, both performers and venues that hosted such performances face a $10,000 fine and up to one year in prison.

The owner of 360 Queen Entertainment — which was one of the plaintiffs in the lawsuit, alongside The Woodlands Pride and Abilene Pride Alliance — testified that its performers sometimes “sit on customers’ laps while wearing thongs,” adding that “one performer invited a ‘handsome’ male customer ‘to spank her on the butt,’” The Texas Tribune reported.

“When asked whether the performers ‘ever perform gesticulations while wearing prosthetics,’ the owner testified that in 360 Queen’s most recent show, a drag queen ‘wore a breastplate that was very revealing, pulsed her chest in front of people, [and] put her chest in front of people’s faces,’” the appeals court ruling said.

But while appeals court Judge Kurt Engelhardt, a Donald Trump appointee, and Judge Leslie Southwick, a George W. Bush appointee, wrote in their ruling that there was “genuine doubt” that these actions are “actually constitutionally protected—especially in the presence of minors,” they didn’t specify whether any of the aforementioned acts would actually violate the law.

In August 2023, the American Civil Liberties Union (ACLU) of Texas filed a lawsuit on behalf of local drag performers challenging the law. The complaint said the law unconstitutionally singled out drag performers and was so broad as to criminalize “an enormous swath of constitutionally protected activity, including theater, ballet, comedy, and even cheerleading.”

In September 2023, U.S. District Judge David Hittner struck down the ban, saying that it “impermissibly infringes on the First Amendment and chills free speech.” When the appeals court agreed to consider the case last November, it ended Hittner’s injunction against the law, and allowed it to go into effect while it remanded the case back to Hittner’s court for further consideration.

When the appeals court revived the ban last November, nonbinary drag activist Brigitte Bandit wrote to her social media followers, “Please be aware that this ‘drag ban’ only applies to certain types of performances where minors can be present. drag storytimes are still legal. drag shows are still legal. book and support your local drag. we need it now more than ever.”

While the Texas law relies on whistleblowers to help enforce it, drag performers and actors worry that venues will stop holding drag performances rather than risk fines. It’s likely that venue managers will place restrictions on drag artists’ acts and prohibit attendance by people under 18 to avoid violating the law.

The plaintiffs and the ACLU of Texas, which represents them, said they intend to continue legally challenging the law.   

“The law’s vague and sweeping provisions still create a harmful chilling effect for drag artists and those who support them, while also threatening many types of performing arts cherished here in Texas, from theater to ballet to professional wrestling,” ACLU Texas attorney Brian Klosterboer said in a statement. “Because this law remains unconstitutional, we look forward to continuing this case … [We] encourage anyone who is impacted by the law to reach out to us. Drag in Texas is here to stay.”

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