Texas can enforce its ban on “sexually oriented” drag shows after a ruling by a federal appeals court.

On Thursday, a three-judge panel on the United States Court of Appeals for the Fifth Circuit overturned a ruling by a lower court that blocked a Texas law, Senate Bill 12, banning “sexually oriented performances.”

S.B. 12, passed in 2023, bans performances that are “sexual in nature” in front of minors. It can lead to the performers receiving fines and jail time. The law was quickly challenged by the Abilene Pride Alliance and the Woodlands Pride Inc., which said that it violated their First Amendment rights. 

However, the panel on the Fifth Circuit said that the plaintiffs did not show that they have standing because they did not prove that they intended to conduct a “sexually oriented performance.”

S.B. 12 does not specifically ban drag performances. But, state Republicans have stated that the goal of the law is to ban drag shows. Governor Greg Abbott wrote on X in 2023, “Texas Governor Signs Law Banning Drag Performances in Public. That’s right.”

The law describes a “sexually oriented” performance as one where the performer is naked or engages in sexual conduct, which it said includes “actual or simulated contact” with another individual’s “buttocks, breast, or any part of the genitals” and appeals to the “prurient interest in sex.”

The judge who wrote the opinion, Kurt Engelhardt, said, “None of the Woodlands Pride conduct introduced at trial arguably amounts to a ‘sexually oriented performance.”

“Because Woodlands Pride does not intend to engage in conduct that is arguably proscribed by S.B. 12, it does not have standing to seek an injunction,” Judge Engelhardt added. 

The jurist also said there is a “genuine doubt” that the drag performers’ actions are “actually constitutionally protected.”

In a statement after the ruling, the Texas attorney general, Ken Paxton, said, “I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances.”

“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,” he added.

The ACLU of Texas called the Fifth Circuit’s ruling “heartbreaking for drag performers, small businesses, and every Texan who believes in free expression.” 

It added that it is “exploring next steps as this case continues.”

The ruling comes as the Fifth Circuit is set to hear arguments on whether public colleges in Texas ban drag shows.