Texas’ drag ban — Senate Bill 12 passed in the 2023 Texas Legislature — has once again been ruled unconstitutional, according to numerous reports.
A federal judge in Houston ruled Tuesday, Aug. 25 — for the second time — that Senate Bill 12, the so-called Texas drag ban which came out of the 2023 legislative session, is unconstitutional. Today’s ruling once against pauses enforcement of the law, which had gone into effect in March.
U.S. District Judge David Hittner of the U.S. District Court for the Southern District of Texas found that the ban is an unlawful restriction on speech that violates the First Amendment. He also issued a permanent injunction against enforcement of the law.
Brian Klosterboer, senior staff attorney for the ACLU of Texas which represented the plaintiffs in the lawsuit, said in a statement that Hittner’s ruling on Tuesday “confirms that the Legislature’s attempt to ban drag performances was unconstitutional from start to finish.
“Drag has a rich history as a refuge of joy and liberation for countless Texans, and it’s not going anywhere,” Klosterboer continued. “This law stifled free expression across our state and made people afraid to engage in or attend drag shows and other performances. But all Texans — no matter our gender or background — are guaranteed the right to free expression.
“We celebrate this victory and remain committed to stopping state officials from targeting LGBTQIA+ Texans and making our state less free and fair,” he said.
SB 12, passed by the Legislature and signed into law by Gov. Greg Abbott in 2023, was part of a wave of “drag ban” laws that swept across the country. The Texas law prohibited “sexually oriented performances” on public property or in the presence of minors under the age of 18. It allowed for businesses hosting such shows to be fined $10,000 and for performers in those shows to be charged with misdemeanor offenses.
Lawsuits challenging SB 12 were filed as soon as it became law, and Judge Hittner on Aug. 31, 2023, issued a temporary restraining law blocked it from taking effect. Less than a month later, on Sept. 26, 2023, Hittner issued his first permanent ruling declaring the law unconstitutional and changing the temporary restraining order into a permanent injunction.
As the Texas Tribune reported today, the lawsuit in which Hittner ruled was originally filed naming Texas Attorney General Ken Paxton, three district attorneys and one county attorney as defendants. Plaintiffs in the case were two community Pride groups, two entertainment groups and cisgender drag performer Brigitte Bandit of Austin.
Paxton and the other defendants appealed Hittner’s 2023 ruling, and the U.S. 5th Circuit Court of Appeals initially overturned the lower court ruling on Nov. 6, 2025, on the grounds that the plaintiffs in the case lacked standing because their specific shows were not erotic. A little more than three months later, on Feb. 25 this year, the 5th Circuit Court issued a revised opinion and finalized its procedural path, thus lifting Hittner’s permanent injunction as of last March.
The 5th Circuit Court sent the case back to Hittner’s court, and the lawsuit was amended to remove the district attorneys and the county attorney from the suit, leaving Paxton and the OAG as the sole defendant. In addition, the two Pride groups were removed from the suit, leaving the two entertainment groups and Brigitte Bandit as the only plaintiffs.
Those changes, Hittner ruled, satisfied the 5th Circuit Court’s instructions in its ruling, which, he added, “did not disturb” his prior decision declaring SB 12 unconstitutional.
Hittner’s ruling, according to Texas Tribune, describes SB 12 as overly broad in its definitions of “performance” and “nudity,” adding, “The vast majority of the law’s numerous applications violate the First Amendment because all the performances that it has an actual impact on are constitutionally protected and are targeted for prohibition based on content and viewpoint.”
In a statement released by ACLU of Texas, Brigitte Bandit said, “We use our performances to assert liberation, power and joy with our community. As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community.”
— Tammye Nash