Exclusion of Drag Shows from Texas A&M Venues Likely Unconstitutionally Viewpoint-Based

A short excerpt from today's long decision by Judge Lee Rosenthal (S.D. Tex.) in Texas A&M Queer Empowerment Council v. Mahomes:

The Texas A&M Queer Empowerment Council ("QEC"), a student organization at A&M's College Station flagship campus has, for each of the last five years, sponsored a drag show cleverly named "Draggieland" on campus.  It is a ticketed event; only those who want to attend do so.  Anyone who finds the performance or performers offensive has a simple remedy: don't go. This year, the performance was scheduled for March 27, 2025.  But on February 28, after tickets were sold, the A&M Board of Regents banned the show from its "Special Event Venues" [which are otherwise generally open to student groups -EV].  No one can go to the scheduled March 27 performance at the on-campus venue that was reserved in advance, even those who want to attend.

The court noted (among other things) that, when a university opens up venues to student groups, it can't then impose viewpoint-based limits on the groups' speech (see, e.g., Rosenberger v. Rector (1995), among many other cases); and the court concluded that this exclusion was viewpoint-based, because the premise of the exclusion was that drag shows are "demeaning" to women:

The Board argues that the ban is viewpoint-neutral because "[t]he Resolution finds that the act of a drag performance that falls within specific parameters—namely, one that features biological males dressing in women's clothing with makeup or prosthetics exaggerating stereotypical female physiognomies, is open to the public, involves 'sexualized, vulgar, or lewd conduct,' and involves conduct that demeans women—is 'inconsistent with the System's mission and core values.'" Put another way, the Board argues that "[t]he Resolution targets conduct that is demeaning, regardless of whether that conduct is meant to express a viewpoint that is itself demeaning." The Board appears to argue that the ban is not a viewpoint-based restriction because the QEC and Draggieland performers do not intend to convey a demeaning message.

The Board's argument is both faulty in logic and contrary to longstanding First Amendment jurisprudence. First, "censorship based on a state actor's subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination." Whether drag shows are "demeaning" is precisely the type of subjective judgment that … cannot form the basis for a restriction on expression. The distinction the Board attempts to make could be used to justify restraints on a wide variety of expressive conduct that is intended to convey a message but may be construed as offensive, shocking, or demeaning by state actors, such as burning the American flag. Our Constitution does not allow for such subjective and unrestricted limits on expression based on viewpoint.

Performances by men dressed as women are nothing new. Men have been dressing as women in theater and film for centuries. It is well-established among scholars of Shakespeare's literary works that, when his plays were written and performed, female characters were played by young men dressed in women's attire. Women may not have been permitted to perform themselves in Shakespeare's time, but that has not been true for many years. Yet many popular contemporary musicals and films have included male characters dressed in what amounts to drag, including Hairspray (1988), Mrs. Doubtfire (1993), and White Chicks (2004). In the college campus context, organizations like Harvard University's Hasty Pudding Club have put on performances with male performers dressed in drag in campus theaters for centuries. Those performances continue to this day. When do performances in which men dress as women cross the line from entertaining to demeaning? The impossibility of objectively answering that question demonstrates why such standards are impermissible as the basis for a restriction on expressive conduct.

The Board's argument that a recent federal executive order necessitates banning drag shows from Special Event Venues fares no better. The Board points to the president's executive order stating that "[f]ederal funds shall not be used to promote gender ideology." The executive order defines gender ideology, in part, "as [the] ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa."

This executive order cannot override First Amendment protections. The Board states that it is banning drag shows on campus because they "promote gender ideology" by advancing the view "that that there is a vast spectrum of genders that are disconnected from one's sex." The fact that the Board justifies its ban on drag shows by saying it aligns with the rejection of a certain ideology belies the Board's contrary position that the ban is viewpoint neutral. The Board's stated justification is the kind of viewpoint discrimination proscribed by the Court in Rosenberger v. Rector (1995): a restriction that "targets not subject matter, but particular views taken by speakers on a subject."

The Board's position conflates biological sexual identity—which the executive order defines as limited to male and female—with the various ways humans have creatively described sex and sexuality in literature, art, and theater. Nothing in the Draggieland performance offends the executive order the Board cites. No male performer in the drag show is stating an intent to become a woman. Nor does the Board point to evidence in the record establishing that the president's executive order on "biological truth" specifically refers or applies to drag shows.

The QEC's complaint makes clear that by donning clothing and makeup traditionally associated with the opposite sex, Draggieland performers intend to convey a message of LGBTQ+ support by engaging in a protected art form. The performers are just that: performers. They are acting. The performance is theater. It is not about individuals seeking to change their biological sex or claim a different biological sex. It is about actors who perform dressed differently than their biological sex.

Again, the Board's argument conflates the existence of two sexes with different ways to express sexuality and sexual themes. The record does not show that the Draggieland performance is in the purview of President Trump's executive order or Governor Abbott's statement in support.

The Fourth Circuit's decision in IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993), is instructive. In that case, the court found that George Mason University could not punish a fraternity for holding an "ugly woman contest" merely because the contest "ran counter to the views that the University sought to communicate to its students and the community." In doing so, the court found that the University was "silencing speech on the basis of its viewpoint."

George Mason took the further step of sanctioning the student group that hosted the "ugly woman contest," while A&M banned the QEC from hosting its event at a campus venue, but both actions violate the First Amendment. Sanctioning a student group for sponsoring an event and precluding a student group from holding an event on campus based on the events' content and viewpoint have the same result: stifling expression because it is offensive to some….

The argument that the ban is a permissible restraint on speech because it aligns with A&M's Student Conduct Code is similarly unpersuasive. The court notes that when "Codes of Conduct" adopted by universities and the First Amendment conflict, the First Amendment takes precedence. See, e.g., DeJohn v. Temple Univ. 9 (3d Cir. 2008); Keefe v. Adams (8th Cir. 2016) ("[A student's] statements may indeed violate the administrators' interpretation of certain provisions of the College's professionalism Code, but that does not answer the question of whether that interpretation is consistent with the First Amendment.") (Kelly, J., concurring in part and dissenting in part). The court finds that there is a high likelihood that the ban is an unconstitutional prior restraint on speech….

Adam Steinbaugh, Jeffrey Daniel Zeman, and JT Morris (Foundation for Individual Rights and Expression) represent plaintiffs.