Federal Judge Blocks Texas A&M From Banning Drag Shows
The judge ruled that Donald Trump and Texas Gov. Greg Abbott's executive orders targeting "gender ideology" can't change the fact that drag performance is expressive conduct under the First Amendment.
A federal judge has blocked the Texas A&M University System from banning drag shows, clearing the way for an upcoming student-run drag performance that administrators had canceled on the grounds that they demeaned women and violated state and federal policies opposing "gender ideology."
Senior U.S. District Judge for the Southern District of Texas Lee Rosenthal issued a preliminary injunction today finding that the Texas A&M Queer Empowerment Council, a student group, was likely to prevail on its claims that the Texas A&M University System Board of Regents violated its First Amendment rights when it banned a March 27 drag show that the group had already reserved space and sold tickets for.
Rosenthal ruled that there was a high likelihood the A&M Board of Regents had engaged in unconstitutional prior restraint and viewpoint discrimination against the student group, and that the board's rule banning drag shows was overly vague. Like the vast majority of federal judges who have considered the question, Rosenthal ruled that drag performances were expressive conduct protected by the First Amendment.
"When do performances in which men dress as women cross the line from entertaining to demeaning?" Rosenthal asked after citing the long history of cross-dressing in theater. "The impossibility of objectively answering that question demonstrates why such standards are impermissible as the basis for a restriction on expressive conduct."
The Queer Empowerment Council filed a First Amendment lawsuit earlier this month against the Texas A&M Board of Regents after the board unanimously passed a resolution to ban drag performances on campuses, including the student group's upcoming "Draggieland" show, which has run on campus for the past five years without incident. The student group was represented by the Foundation for Individual Rights and Expression* (FIRE), a free speech advocacy group.
"Today is a resounding victory for the First Amendment at public universities in Texas," Adam Steinbaugh, a FIRE attorney, said in a press release. "The court reaffirmed that state university officials cannot block student expression they claim is offensive. State officials should stop trying to score political points at the expense of students' First Amendment rights."
The board justified the ban on drag shows by saying they were "likely to create or contribute to a hostile environment for women." The board also cited executive orders from President Donald Trump and Republican Texas Gov. Gregg Abbott targeting so-called "gender ideology," the latter of which instructs Texas state agencies to "comply with the law and the biological reality that there are only two sexes—male and female"
But Rosenthal was wholly unpersuaded by Texas A&M's arguments, noting that many of them were contradictory: Drag shows promoted "gender ideology" yet were somehow not expressive conduct; the board's policy, meanwhile, was viewpoint neutral despite explicitly citing ideology as a justification.
The board also tried to argue that the only portions of the "Draggieland" show protected by the First Amendment were when students gave short monologues on what drag shows meant to them, not dancing.
"The court disagrees," Rosenthal wrote. "It is long and well established that theatrical performances are protected forms of expressive conduct, not held to a 'drastically different standard' than other forms of speech under the First Amendment solely because theater 'frequently mixes speech with live action or conduct'….The performance must be considered as a whole, like any other artwork. Both the performance and conversations that comprise Draggieland are intended to convey a culturally significant message about LGBTQ+ rights. The court finds that Draggieland is protected as speech and expressive conduct."
Texas A&M was undoubtedly hoping to build on a victory in a similar 2023 case, where U.S. District Judge for the Northern District of Texas Matthew Kacsmaryk denied a motion for a preliminary injunction against West Texas A&M University from banning drag shows on campus.
Kacsmaryk, citing conservative sources such as the Manhattan Institute's Chris Rufo, held that drag was not categorically protected speech under the First Amendment and that the university could regulate vulgar and lewd content.
Kacsmaryk's ruling is currently on appeal before the U.S. Court of Appeals for the 5th Circuit.
In the meantime, "Draggieland" is back on, scheduled for this Thursday.
"We're overjoyed with today's decision," the Queer Empowerment Council said in a press release. "This is another display of the resilience of queer joy, as that is an unstoppable force despite those that wish to see it destroyed. While this fight isn't over, we are going to appreciate the joy we get to bring by putting on the best show that we can do."
*CORRECTION: The original version of this article misstated the name of the Foundation for Individual Rights and Expression.
