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On November 6th, the U.S. Court of Appeals for the Fifth Circuit issued a landmark ruling reinstating enforcement of Senate Bill 12, the 2023 Texas law restricting sexually oriented performances in the presence of minors. The decision vacated a lower court injunction that had blocked the law for more than two years and sent the case back to the Southern District of Texas for reconsideration under the Supreme Court’s Moody v. NetChoice framework.
The opinion, written by Judge Kurt Engelhardt, allows the state to once again enforce SB 12 while litigation continues. The court’s decision narrows the scope of who may challenge the law and reaffirms that Texas has a legitimate and compelling interest in preventing children from being exposed to sexually explicit performances. The ruling marks a significant step in restoring Texas’s ability to uphold community standards and protect minors from inappropriate material.
Background: The Legal Challenge Against SB 12
Senate Bill 12, authored by State Sen. Bryan Hughes (R-Mineola), was passed during the 88th Texas Legislative Session in 2023 to address concerns about children being exposed to explicit sexual performances at public or family-oriented events. The law prohibits sexually oriented performances in the presence of minors or on public property.
Shortly before it took effect on September 1, 2023, the ACLU of Texas filed a lawsuit on behalf of The Woodlands Pride, Abilene Pride Alliance, Extragrams, LLC, 360 Queen Entertainment, and performer Brigitte Bandit. The plaintiffs alleged that the law was a “drag ban” targeting LGBTQ expression, arguing that it was unconstitutionally vague and restricted their free-speech rights.
In September 2023, U.S. District Judge David Hittner agreed with those arguments and permanently enjoined enforcement of the law, calling it “viewpoint discrimination.” That decision effectively halted Texas’s efforts to enforce basic child-safety standards in public performances until now.
What SB 12 Prohibits and How It Is Enforced
SB 12 does not mention drag by name. Instead, it prohibits any “sexually oriented performance” on public property or in the presence of minors. The law defines such a performance as one that includes a performer who is nude or engages in sexual conduct and that appeals to the “prurient interest in sex.”
The term “sexual conduct” includes the exhibition or simulation of sexual acts, contact with intimate body parts, or sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.
Performers who violate this provision commit a Class A misdemeanor. Venue owners or businesses that knowingly allow such performances in front of minors may face civil penalties of up to $10,000 per violation, enforced by the Texas Attorney General through the courts.
In practice, the law ensures that businesses and performers maintain standards of decency consistent with community values when minors are present. It does not criminalize drag itself but holds accountable those who allow or participate in sexually explicit performances involving children.
The Fifth Circuit’s Decision: Restoring Order and Common Sense
The Fifth Circuit’s opinion in The Woodlands Pride, Inc. v. Paxton centered on standing, procedure, and constitutional analysis. The court found that only one plaintiff, 360 Queen Entertainment, had standing to challenge SB 12 because its performances arguably fit within the statute’s scope. The others did not.
Judge Engelhardt concluded that the lower court had failed to apply the Supreme Court’s Moody v. NetChoice standard, which governs facial First Amendment challenges. Under Moody, a law is unconstitutional only if its illegal applications “substantially outweigh its constitutional ones.” The district court, he wrote, “did not conduct this analysis,” making its injunction improper.
Importantly, the panel noted that “not all drag shows are sexually explicit” and that SB 12 regulates conduct, not identity. In other words, drag performances that are family-friendly or theatrical remain fully lawful, while those that involve sexually explicit behavior in the presence of minors do not.
The court therefore vacated the injunction and returned the case to the district court for reconsideration under the proper constitutional framework.
Dissenting View: Free Speech Versus Public Morality
Judge James Dennis wrote separately to concur in part and dissent in part. He claimed that the Legislature’s intent was to ban drag performances outright and argued that SB 12 risked chilling protected expression. His dissent cited legislative debates and statements from Texas lawmakers as evidence that drag, rather than sexual conduct, was the true target of the statute.
While his opinion acknowledged the state’s interest in child protection, it viewed SB 12 as overbroad and unnecessary. Dennis contended that Texas already prohibits obscene performances and the display of harmful material to minors under existing law.
However, the majority’s approach reflects a far narrower and more constitutionally sound view. It recognizes the legitimacy of SB 12 as a targeted regulation on explicit sexual conduct, not a blanket restriction on artistic expression. The dissent’s concern with expressive freedom, while legally relevant, does not outweigh the state’s duty to safeguard children from indecent exposure.
AG Paxton’s Statement: A “Major Win” for Texas Families
Following the ruling, Attorney General Ken Paxton (R) praised the court’s decision as a reaffirmation of the state’s responsibility to defend public decency and child safety. In a press release and accompanying statement on social media, Paxton called the outcome a “major victory.”
“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” he said. “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”
Paxton’s post on social media reiterated the same message: “Major win: I successfully defended a law protecting children from being exposed to sexually illicit content at erotic drag shows. I will always work to shield our kids from exposure to erotic and inappropriate sexually oriented performances.”
His statement reflects a clear policy stance that protecting children from explicit content is a fundamental and non-negotiable responsibility of the state government.
Implications for Enforcement and Policy
With the injunction vacated, SB 12 is again enforceable throughout Texas. Performers and venues should now operate under clear guidance: if a performance involves explicit sexual conduct and minors are present, it falls under the statute’s prohibitions.
The Fifth Circuit’s ruling provides assurance to parents and communities that Texas retains the authority to set moral boundaries for public spaces. By upholding the Legislature’s intent, the court has effectively reinstated a common-sense barrier between adult entertainment and child audiences.
Local governments, under Section 243.0031 of the Texas Local Government Code, may still regulate performances as necessary to promote public welfare, provided they do not authorize sexually oriented performances before minors. This ensures consistency across jurisdictions while preserving local control.
Policy Context: Liberty, Morality, and Limited Government
Texas Policy Research maintains that liberty and order are not opposing forces but complementary ones. The state has both the right and the duty to enact laws that protect the innocence of children and uphold community standards.
True liberty cannot exist where moral anarchy is allowed to undermine the rights of parents to raise their children in safe environments. The principle of limited government does not mean a government indifferent to public decency; it means a government that acts decisively within its proper bounds to preserve it.
SB 12 accomplishes this by addressing conduct that clearly falls outside the realm of protected expression. The Fifth Circuit’s ruling affirms that states need not remain powerless to protect children simply because offenders attempt to cloak indecency in the language of art.
In the balance between freedom and responsibility, Texas’s approach reinforces that protecting minors from sexual exploitation or exposure is an essential component of ordered liberty.
Conclusion: Upholding Standards, Protecting Children
The Fifth Circuit’s decision to reinstate SB 12 restores Texas’s ability to enforce a law that reflects both moral clarity and constitutional restraint. The ruling confirms that states have the authority to draw distinctions between legitimate expression and sexually explicit behavior when children are involved.
While the case will return to the district court for further review, the immediate effect is clear: Texas can once again hold performers and venues accountable for maintaining decency in public spaces. The decision signals to other states that child protection and constitutional freedom are not mutually exclusive, but rather coexisting responsibilities.
In defending SB 12, Texas has reaffirmed that protecting children from exposure to explicit sexual conduct is not censorship; it is stewardship. The Fifth Circuit’s ruling is therefore not only a legal win but a moral one, preserving both the innocence of children and the integrity of the public square.
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