Does Texas’s ‘drag ban bill’ target transgender Texans?

"This law — just by its passage — gives authorities a little bit more reason to say, 'Well, I can come after somebody who's trans.'"

by Cora Neas and Russell Falcon | Jun. 05, 2023

Drag queen Dani Knighten, from Austin, Texas performs during the Vanguard drag show at the Swan Dive nightclub on April 19, 2023. Photo by Brandon Bell/Getty Images

Story at a glance

A bill that bans “sexually oriented performances” in the presence of minors passed during Texas’ 88th legislative session.

Now, transgender Texans worry the bill might target them for non-explicit performances — or for merely existing in public spaces.

“I named SB 12 to be one of my top priorities this session because someone must push back against the radical left’s disgusting drag performances which harm Texas children,” said Lt. Gov. Dan Patrick.

AUSTIN (KXAN) — A bill that bans “sexually oriented performances” in the presence of minors passed during Texas’ 88th legislative session. Now, transgender Texans worry the bill might target them for non-explicit performances — or for merely existing in public spaces.

The initial version of Texas Senate Bill 12 (SB 12) originally included a penalty for performers who wear clothing that doesn’t conform to traditional gender presentation, and was called a “drag ban bill” by conservative politicians.

But that language was removed and replaced with a prohibition on “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.” This line, along with “the actual or simulated exhibition or representation” of sex acts and visible “sexual stimulation” devices, make up the totality of “sexual conduct” in the bill.

For a performance to violate the law, the performer would have to commit any of the above or be nude in a way that “appeals to the prurient interest in sex,” a phrase referring to obscenity. A violation is a Class A misdemeanor charge.

Lt. Gov. Dan Patrick celebrated the bill when it passed on May 28.

“I named SB 12 to be one of my top priorities this session because someone must push back against the radical left’s disgusting drag performances which harm Texas children,” said Patrick in a press release. “It is shocking to me that any parent would allow their young child to be sexualized by drag shows. Children, who cannot make decisions on their own, must be protected from this scourge facing our state.”

KXAN reached out to SB 12 author Sen. Bryan Hughes, R-Tyler, with questions and for comment about the bill’s passage and potential enforcement, but have not heard back. After the bill’s passage, Hughes tweeted that drag shows are “indisputably inappropriate for minors.”

No part of Hughes’ bill directly bans drag performances; however, Lambda Legal South Central Regional Director Shelly Skeen said that it will likely be enforced selectively against the art form. The intersection of drag queens and children has been a hot topic nationwide for years, in particular, “Drag Queen Story Hour,” which are typically library-set reading times hosted by a drag queen.

Questions about drag have arisen in conversations around transgender identities, as the two are often conflated, despite having two different meanings. In its most basic sense, “drag” typically refers to an art form of men (either heterosexual or queer) dressing as women for theater – a tradition that dates back to Shakespearean days, BBC reports.

Trans people have been integral to the development of drag, particularly American performers like activist and Gay Liberation Front co-founder Marsha P. Johnson, who were at the forefront of LGBTQ+ civil rights in 1970s New York City.

Often, drag queens use their drag for more serious activism and even light-hearted comedy. It’s important to note that the art form of drag is not inherently sexual or tied to any one sexual orientation or identity.

Importantly, Skeen said that SB 12 does not apply to transgender people going about their lives.

“I don’t want people to feel like they can’t walk around and do their daily lives if they’re trans, if they’re non-binary or they don’t conform with old-school gender roles,” Skeen said. “I want people to feel like they can still do what they would normally do. I don’t want people to be scared by this bill.”

Skeen said there’s still the possibility that law enforcement could overreach or use the law to selectively target marginalized people.

“People who are trans are targeted, people who are Black and trans are even more targeted,” Skeen said. “This law — just by its passage — gives authorities a little bit more reason to say, ‘Well, I can come after somebody who’s trans.'”

Madonna during her “Blonde Ambition” tour, at the Spectrum in Philadelphia, Pa., June 16, 1990. The tour is remembered for many elements, including several Jean Paul Gaultier-designed conical bras worn both by the artist and her dancers (AP Photo/Sean Kardon)

A key part to understanding the bill is that it covers performances (not solely drag), and now covers cisgender and transgender artists equally, Skeen says.

Madonna’s 1990 “cone bra” look is one example of what will be prohibited under Texas law, according to Skeen.

During House hearings about SB 12, Elvis’ pelvic thrusts were also mentioned as potential violations as “sexual gestures,” a term Skeen said is not well defined in U.S. law.

“Any type of bill that would impose criminal liability, you have to know what the conduct is that would violate it,” Skeen said. “When you have bills like this one — it’s very ambiguous — that makes it more likely subject to a legal challenge, because you could be arrested for something and not know that the thing that you’re doing could be a violation.”