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This week, a federal judge in Texas, known for his conservative views, expressed support for limitations on drag shows. This opinion diverges from numerous other federal rulings that have deemed similar bans in other states as unconstitutional.
Judge Matthew Kacsmaryk of the U.S. District Court confirmed that President Walter Wendler of West Texas A&M University had the right to cancel a drag show on campus. In March, students filed a lawsuit against Wendler, claiming that he had infringed upon their freedom of speech by prohibiting a fundraising event with drag performers. However, Kacsmaryk rejected their plea for immediate action to halt the ban.
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 concern over Kacsmaryk’s decision as it deviates significantly from previous rulings in this field. The U.S. Supreme Court is anticipated to have a decisive role in the various lawsuits regarding bans on drag shows as they progress through the legal process. It remains uncertain how Kacsmaryk’s ruling in the West Texas A&M case, which pertains to campus activities, will be taken into account.
In a statement, JT Morris, a senior attorney for the Foundation for Individual Rights and Expression (FIRE), a national group advocating for free speech on campuses, expressed strong opposition to the court’s First Amendment analysis and conclusions. Morris stated that FIRE will appeal the decision and will persist in fighting for the expressive rights of the courageous college students involved.
Six months after an LGBTQ+ student group’s unsuccessful attempt to organize a drag performance on campus, the contrasting decision has finally 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 consistent presence in the LGBTQ+ community, often showcasing men who dress in exaggerated styles as women. Drag performers assert that their performances not only embody queer joy but also serve as constitutionally-protected speech, challenging societal gender norms.
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 provided a contrasting evaluation. He stated that the students’ interpretation of “expressive conduct” did not meet the required criteria for resolving a Free Speech campus case.
The judge from Amarillo contended that while the drag show may be legal, the university has the right to regulate it to ensure the safety of children. The event organizers stated that children could attend if accompanied by a parent or guardian. Additionally, Kacsmaryk emphasized that Wendler is protected from any repercussions resulting from his decision to cancel the drag show, as the university president was acting within his governmental authority.
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.
According to Brian Klosterboer, a lawyer representing the American Civil Liberties Union of Texas in the lawsuit against the state regarding the ban on drag, the two rulings address separate domains. The lawsuit against West Texas A&M University focuses on activities within the campus, whereas the recently passed law imposes a restriction statewide.
Klosterboer expressed his hope that the U.S. Court of Appeals for the 5th Circuit would reverse Kacsmaryk’s order, deeming it to be in contradiction with numerous Supreme Court rulings.
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