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This week, a federal judge from Texas known for their conservative views expressed support for restrictions on drag shows. This stance diverges from numerous federal rulings in other states that have deemed such bans unconstitutional.
According to U.S. District Judge Matthew Kacsmaryk, West Texas A&M University President Walter Wendler’s decision to cancel a campus drag show fell within his jurisdiction. In March, students filed a lawsuit against Wendler, claiming that the president’s ban on a drag performer fundraiser violated their freedom of speech rights. However, Kacsmaryk denied the students’ plea for immediate legal protection.
In his opinion, Kacsmaryk wrote, at “this point in Free Speech jurisprudence, it is not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’”
Kacsmaryk’s opinion stands in contrast with several other decisions over free speech lawsuits related to drag shows. Around the country and in states run by Republicans, federal judges in Florida, Montana and Tennessee have successfully blocked laws aimed at banning or limiting drag shows from going into effect. In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled the state’s drag ban is unconstitutional in its effort to suppress First Amendment-protected speech.
Observers are expressing concerns over Kacsmaryk’s decision as it deviates significantly from previous rulings in this field. The U.S. Supreme Court is anticipated to play a crucial role in determining the outcome of the multiple lawsuits regarding drag show bans. However, it remains uncertain how Kacsmaryk’s decision will be considered, given that the West Texas A&M case specifically pertains to activities on campus.
In a statement, JT Morris, senior attorney for the Foundation for Individual Rights and Expression (FIRE), a national organization that advocates for free speech on campuses and represents the students, expressed strong disagreement with the court’s First Amendment analysis and its conclusions. Morris emphasized that they would appeal the decision and continue their fight for the expressive rights of these courageous college students.
Six months after an LGBTQ+ student group’s failed attempt to organize a drag performance on campus, a contrasting decision has been made.
In March, Wendler sent a letter to students, faculty and staff at West Texas A&M University canceling a drag show scheduled to take place on campus to raise money for The Trevor Project, a nonprofit that works to reduce suicides in the LGBTQ+ community. Wendler said drag shows “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.”
Days later, students filed a free speech lawsuit arguing Wendler is “openly defying the Constitution,” by restricting drag performances on campus. Plaintiff’s claimed that drag performances are “expressive conduct,” protected by the First Amendment.
For decades, drag shows have been a prominent aspect of the LGBTQ+ community, often showcasing men dressed in exaggerated styles as women. Drag performers consider their craft as a means to express queer joy, while also asserting their constitutionally-protected right to challenge societal gender norms through speech.
LGBTQ+ groups and performers made similar claims in another federal lawsuit that challenges a Texas law that restricts drag shows from being performed in front of children. U.S. District Judge David Hittner temporarily blocked the law, arguing that banning drag shows is “likely” unconstitutional.
However, in his Thursday order, Kacsmaryk presented a contrasting evaluation. According to him, the students’ interpretation of “expressive conduct” did not meet the required criteria to determine a Free Speech campus case.
The judge from Amarillo contended that, despite the legality of the drag show, the university has the right to oversee it in order to safeguard children. The event’s coordinators stated that it was accessible to children as long as they were accompanied by a parent or guardian. Kacsmaryk further asserted that Wendler cannot face repercussions for canceling the drag show since the university president acted as a government official within his jurisdiction.
The Office of the Attorney General quickly took notice of Kacsmaryk’s order, requesting Judge Hittner throw out the case against the Texas law restricting drag shows.
Brian Klosterboer, a lawyer representing the American Civil Liberties Union of Texas in their lawsuit against the state regarding the drag ban, clarified that the two rulings pertain to distinct areas. Specifically, the lawsuit against West Texas A&M revolves around activities on their campus, whereas the newly enacted law imposes restrictions statewide.
Klosterboer expressed his desire for the U.S. Court of Appeals for the 5th Circuit to reverse Kacsmaryk’s order, stating that it contradicts the majority of Supreme Court rulings.
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