Austin theater part of 2nd lawsuit filed against Texas drag performance law

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AUSTIN (KXAN) — A theater company based in Austin for more than 30 years is part of a second lawsuit challenging a Texas law that some argue would amount to a ban on public drag performances.

The VORTEX Repertory Company located in east Austin joined seven other plaintiffs suing Texas and local leaders to block Senate Bill 12 from going into effect next month. The other plaintiffs include four actors as well as the Greater Houston LGBTQ Chamber of Commerce, the San Antonio LGBT Chamber of Commerce and the North Texas LGBT Chamber of Commerce. Their lawsuit comes almost a week after five plaintiffs, including the Austin-based drag performer Brigitte Bandit, filed a separate case over the same law.

Bonnie Cullum, the co-founder and producing artistic director of The VORTEX, released a statement explaining why her company is joining the lawsuit.

“The VORTEX opposes the passage of Texas S.B.12 as an attack on our Constitutional right of free speech through our artistic expression,” Cullum wrote. “For 35 years, we have created urgent, unashamed art as we have produced hundreds of original productions, nurtured generations of artists, received hundreds of awards, and dared to dream the world in which we want to live. We have cultivated a fearless theatre exchange, a nationally-certified butterfly sanctuary, and a thriving cultural harbor in East Austin. This law is broad, hateful, and difficult to interpret and enforce. It is an attack on our First Amendment rights to create our theatrical art without oversight by the state. It threatens my professional career and places me and our non-profit performing arts company in jeopardy for making the art that we have shaped and nurtured since 1988.”

The Texas Civil Rights Project, the legal advocacy organization, announced it filed this latest lawsuit in the U.S. District Court Western District of Texas, Austin Division. The other suit brought last week by the ACLU of Texas is in the U.S. District Court Southern District of Texas, Houston Division.

Ashley Fernandez Dorsaneo, the criminal injustice senior supervising attorney at the Texas Civil Rights Project, said in a statement Tuesday, “This bill is a blatant violation of the First Amendment right to freedom of speech. Texans of all backgrounds and gender identities deserve to express themselves freely, but this ban silences a broad swath of speech by all kinds of actors and performers. Similar laws have been struck down in other states, and we are confident that SB12 will not hold up in court.”

After news of the first lawsuit against SB 12 came out last week, Texas Sen. Bryan Hughes, who introduced the legislation, expressed confidence that no court would block the law from taking effect on Sept. 1.

“Surely we can agree that children should be protected from sexually explicit performances,” Hughes, R-Mineola, said. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”

Gov. Greg Abbott signed SB 12 on June 18 after lawmakers pushed the legislation through both chambers during the regular legislative session. However, the bill received significant pushback from advocates for the LGBTQ+ community and others over their concerns about it possibly criminalizing drag performances and venues that host shows in the state.

Before state lawmakers ultimately approved the legislation, they removed direct mentions of drag performances or gender non-conformity from the language. The bill initially filed by Hughes defined a “sexually oriented performance” to include “a male performer exhibiting as a female, or a female performer exhibiting as a male, who uses clothing, makeup, or other similar physical markers and who sings, lip syncs, dances, or otherwise performs before an audience.” However, that’s no longer in the final version adopted.

A “sexually oriented performance” is defined more broadly in the law now to be “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation;” “the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal;” “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals;” “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person;” and “the exhibition of sexual gesticulations
using accessories or prosthetics that exaggerate male or female sexual characteristics.”

A business owner who hosts such a performance in front of someone younger than 18 could face a fine up to $10,000, while a performer engaged in a sexually oriented performance “on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child” could get charged with a misdemeanor. Additionally, a city or a county “may not authorize a sexually oriented performance,” according to the law.

In the new lawsuit, The VORTEX claims many of its performances “would arguably be considered ‘sexually oriented performances’ under SB 12 and, because there are no enforced age restrictions at the performances, they would likely violate the law.”

“The only way for The VORTEX and its artists to definitively avoid legal consequences is to radically alter the nature of its performances, place strict limits on its artists’ expression, and ultimately self-censor,” the lawsuit reads. “This is the essence of a chilling effect on theatrical
performances.”

In making its argument that the legislation “began as a targeted attack on drag performances,” it cites KXAN’s past coverage of senators debating the bill, including the moment in April when the Texas lieutenant governor had to pause debate after a Democratic senator’s comment about addressing gun violence led to cheers and applause from visitors in the chamber.

Other lawsuits Texas faces

There are several other lawsuits filed against legislation signed by the governor this year. Five Texas families with transgender children as well as three doctors are now suing the state to block Senate Bill 14, a law that would ban young people from receiving certain health care options and put medical licenses in jeopardy.

Two Texas bookstores also filed a lawsuit aiming to block a state law from going into effect that would require sellers to rate books based on their sexual content and possibly result in the removal of titles from school library shelves.