AUSTIN (KXAN) — A bill that bans “sexually oriented performances” in the presence of minors passed during Texas’ 88th legislative session. As the bill moved forward, transgender Texans voiced concerns that the bill might target them for non-explicit performances or for merely existing in public spaces.
Lambda Legal South Central Regional Director Shelly Skeen spoke on these fears, and said that this bill 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 did leave open the possibility that law enforcement could overreach or use it 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.'”
Who will it effect?
The initial version of Senate Bill 12 (SB 12) did include a penalty for performers who wear clothing that doesn’t conform to traditional gender presentation, and called a “drag ban bill” by conservative politicians.
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.
“These shows are indisputably inappropriate for minors, and we will not allow children to be sexualized nor preyed upon in Texas,” said Hughes on Twitter after the bill passed.
No part of Hughes’ bill directly bans drag performances; however, Skeen said that will likely be enforced selectively against the art form.
The key parts of the bill, Skeen explains, are that it covers all performances (not solely drag), and now covers cisgender and transgender artists equally.
As an example, she referenced Madonna’s 1990 “cone bra” look as an example of what will be prohibited under Texas law. 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.”