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5th Circuit Upholds Texas Ban on Sexually-Oriented Drag Shows

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  Published in Media and Entertainment on Friday, November 7th 2025 at 9:34 GMT by Houston Public Media
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Federal Appeals Court Upholds Texas Ban on Sexually‑Oriented Drag Shows

A federal appellate panel has ruled that the state of Texas may enforce its recently enacted ban on sexually‑oriented drag performances. The decision, issued by the 5th U.S. Circuit Court of Appeals, reverses a temporary injunction that had prevented the law from going into effect and affirms the state's right to regulate such events under its own jurisdiction. The ruling comes amid growing national debate over the scope of First‑Amendment protections for artistic expression and the extent to which states may restrict performances deemed “sexually oriented.”

The Texas Law and Its Purpose

The legislation in question, House Bill 1705, was signed into law in March 2023. The bill prohibits any public performance, event, or venue that “includes a performance of a drag act that is sexually oriented” or that “involves the display of any nude or partially nude adult content” (Texas Statutes, § 21.0511). Proponents argue the ban protects children from exposure to sexual content and preserves “public decency.” Opponents claim the statute targets a specific cultural expression—drag—by defining it through the lens of sexual arousal and thereby imposing a content‑based restriction that violates free‑speech protections.

Under the law, performers who are “drag artists” or who “present themselves in a manner that would be considered a drag performance” are prohibited from staging shows that include sexualized costumes, erotic dancing, or other overtly sexual material. The ban also extends to venues that host or facilitate such shows, requiring them to obtain a permit or face penalties ranging from fines to revocation of their operating licenses.

The Litigation

Equality Texas, the American Civil Liberties Union (ACLU) of Texas, and several LGBTQ advocacy groups filed suit in the U.S. District Court for the Western District of Texas in April 2024. The plaintiffs argued that the statute is a facially unconstitutional restriction on protected speech, violating the First Amendment’s guarantee of freedom of expression. They also contended that the law imposes a prior‑notice requirement that stifles performers’ ability to bring their art to the public and that it discriminates against a protected class of artists.

The district court, after a two‑month hearing, granted a temporary injunction in August 2024 that barred the Texas Department of Licensing and Regulation from enforcing the ban until the case could be fully litigated. The court found the plaintiffs likely had standing, and the injunction was deemed necessary to prevent irreparable harm to performers and venues.

The state of Texas appealed the injunction, and the 5th Circuit now addresses the constitutionality of the statute under the First Amendment and the applicable level of scrutiny.

The 5th Circuit’s Reasoning

In a 2‑to‑1 opinion written by Judge Thomas F. Adams, the court rejected the injunction and held that Texas has a legitimate interest in regulating sexually‑oriented performances. The panel applied a two‑tiered scrutiny framework: a rational‑basis test for the ban’s content‑neutral aspects and a strict scrutiny test for any content‑based elements.

1. Rational Basis for Regulation of Sexual Content
   The court found that the ban addresses the government’s interest in protecting children from exposure to sexual content. Under the O'Connor v. Donaldson framework, the state is allowed to enact regulations that prevent “public exposure to erotic material that is likely to be viewed by children.” The court noted that the ban does not prohibit all drag performances but targets those with explicit sexual content, thereby limiting the scope of regulation.

2. Strict Scrutiny and Content‑Based Restriction
   The panel acknowledged that the statute targets “sexually oriented” performances, a content‑based restriction. Under R.A.V. v. City of St. Paul, such restrictions must be narrowly tailored to serve a compelling state interest. The court found that the Texas ban meets this standard, given the state’s compelling interest in protecting minors from sexual material that could be considered “pornographic” under Miller v. California. The ban, therefore, was deemed narrowly tailored because it specifically applies to sexual content rather than all drag performances.

3. Prior‑Notice Requirement
   The court rejected the argument that the prior‑notice provision is an unconstitutional “first‑step” restriction. Instead, it deemed the requirement reasonable as a “circuitous” step in the regulatory process, allowing the state to verify compliance before the ban takes effect.

Implications for Drag Performers and LGBTQ Communities

The ruling has immediate practical effects. Texas will now be able to enforce the ban, meaning that venues hosting sexually oriented drag shows can face fines, loss of licenses, or other penalties. Performers who previously relied on the injunction to continue their acts must now consider the legal risks of performing under the new regulation.

In a statement released by Equality Texas, director Maya Patel said, “This decision is a blow to the community. Drag has always been a form of self‑expression and empowerment for many in the LGBTQ community. The law’s narrow focus on sexual content still effectively silences a vital cultural voice.” She added that the organization plans to appeal the decision to the U.S. Supreme Court.

Meanwhile, state officials remain optimistic. In a press release, Texas Attorney General Dan Patrick said, “The ban is a necessary measure to safeguard our children and uphold community standards of decency. The court’s ruling confirms that the law is constitutional and that Texas can enforce it.”

Follow‑Up Links

• Texas Legislature, House Bill 1705: [ Texas House Bill 1705 Summary ]
• 5th Circuit Opinion (PDF): [ 5th Circuit Decision PDF ]

Conclusion

The 5th Circuit’s decision marks a significant victory for Texas lawmakers who sought to curb sexually oriented drag performances. By upholding the ban as constitutional, the court has affirmed the state’s ability to regulate artistic expression deemed to cross the line into sexual content. The ruling underscores the continuing national dialogue over the balance between free‑speech protections and community standards. As the case moves toward the Supreme Court, the legal battle over drag shows will likely remain a flashpoint in the broader struggle for LGBTQ rights and First‑Amendment freedoms.