The Fifth Circuit Court of Appeals has blocked West Texas A&M University President Walter Wendler from enforcing his ban on drag shows on the school’s campus in Canyon, Texas, ruling that the shows are most likely protected under the First Amendment, according to reports by The Texas Tribune.
The Fifth Circuit’s ruling overturns a lower court decision allowing Wendler to keep the ban in place.
The battle over drag on the campus started back in March 2023 when Wendler canceled plans for a student-run drag show that had been planned as a fundraiser benefitting The Trevor Project, a national nonprofit that focuses on preventing.” suicide among LGBTQ+ youth.
Wendler forced the group planning the show to cancel and banned any future drag shows, saying in a letter to the school’s students, faculty and staff that there is “no such thing” as a “harmless” drag show, comparing drag to performing in blackface and saying it makes fun of woman.
“Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent,” Wendler wrote at the time. “I do not support any show, performance or artistic expression which denigrates others — in the case, women — for any reason.”
By March 24 that year, the Foundation for Individual Rights and Expression, the student group Spectrum WT and two of Spectrum’s student leaders had filed suit against Wendler and his decision. And on April 25, the faculty at West Texas A&M, in a vote of no confidence, had condemned Wendler’s ban and his leadership by a 2-to-1 margin — 179-82.
Then in March 2024, Wendler canceled a second planned drag show fundraiser, and the Supreme Court rejected FIRE’s application for an injunction to stop Wendler’s ban. The Fifth Circuit heard arguments in the cast in April last year.
In the 2-1 ruling on Monday, Aug. 18, Judge Leslie H. Southwick, a George W. Bush appointee, wrote the majority opinion, saying that the context of the students’ planned drag show made its message of supporting the LGBTQ+ community very clear, the Tribune reports.
Southwick wrote, “The viewers of the drag show would have been ticketed audience members attending a performance sponsored by LGBT+ student organizations and designed to raise funds for an LGBT+ suicide-prevention charity. Against this backdrop, the message sent by parading on a theater stage in attire of the opposite sex would have been unmistakable.”
The Fifth Circuit also ruled that Legacy Hall, the planned site for the drag show, was a “designated public forum open to a variety of groups, including churches and political candidates,” the Tribune notes, which means that banning the drag show specifically targeted its content, “something the Constitution allows only in the rarest cases.”
The Fifth Circuit also ruled that the students faced “ongoing irreparable harm to their free speech rights,” noting that Wendler had, in cancelling the drag show planned for March 2024, also declared that he would never allow drag shows on campus. That reasoning, the Tribune notes, gave the Fifth Circuit judges another reason to block the ban “since courts only grant such relief when plaintiffs have a strong case and risk being harmed without it.”
This week’s decision means that the West Texas students can hold a drag show even as their lawsuit against Wendler continues to play out at the trial court level.
— Tammye Nash