Texas House passes bill aimed at keeping kids from seeing sexually explicit performances

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

The Texas House gave final approval Monday to a bill restricting children from seeing sexually explicit performances. Senate Bill 12 was originally designed to restrict kids from attending drag shows, but its most recent version seeks to criminalize any live performance that the bill defines as sexual.

The House voted 93-45 to pass its version of the legislation. On Thursday, the Senate decided to send Senate Bill 12 to a conference committee made up of members from both legislative changes rather than accept the House’s changes to the legislation. The lower chamber removed the bill’s original focus on drag shows. The committee must reach an agreement on the bill by the end of Saturday for it to reach Gov. Greg Abbott’s desk.

The most recent version of SB 12 defines a sexually explicit performance as one in which someone is nude or appeals to the “prurient interest in sex.” The legislation would fine business owners $10,000 for hosting such performances in front of kids. It would also slap performers violating the proposed restriction with a Class A misdemeanor, which could result in up to a year in jail, a $4,000 fine or both.

Republican state Rep. Matt Shaheen of Plano cited the U.S. Supreme Court’s definition of prurient interests, which is defined as “erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion,” though the language’s interpretation varies by community.

Authored by Sen. Bryan Hughes, the version of SB 12 passed by the Senate had language specifically targeting sexually explicit drag shows. It described sexually oriented performances as including someone who is naked or dressed in drag, and “[appealing] to the prurient interest in sex.” Such restrictions on drag shows are a priority of Lt. Gov. Dan Patrick.

The committee ironing out the chamber’s differences will be chaired by Hughes. It also includes Republican Sens. Angela Paxton of McKinney, Drew Springer of Muenster and Brandon Creighton of Conroe, as well as Democratic Sen. Royce West of Dallas. Republican Rep. Matt Shaheen of Plano will chair the House conferees, which include Republican Reps. Charlie Geren of Fort Worth, Caroline Harris of Round Rock, Jared Patterson of Frisco, as well as Democratic Rep. Joe Moody of El Paso.

The Senate decision to appoint a conferees rather than accept the House’s changes came three days after the lower chamber passed its version of the bill.

Hughes put forward the bill after a small but loud group of activists and extremist groups fueled anti-drag panic by routinely characterizing all drag as inherently and nefariously sexual regardless of the content or audience. Top GOP leaders in the state, including Patrick, have rallied around protecting children from drag shows, which vary widely in content based on the audience.

After SB 12 moved over to the House, Shaheen amended the legislation and removed language that explicitly references drag. That dramatically broadened the scope of the legislation.

“There is a growing trend to expose children to more and more sexual content,” said Shaheen introducing the bill on Friday. “These types of performances were once reserved for sexually oriented businesses, but now they’re occurring in restaurants and other public venues while children are present,” Shaheen said, referencing a drag show he said was inappropriate for children that took place in his district.

The Texas House LGBTQ Caucus released a statement Friday following the unusual vote, noting the bill’s recent changes by Shaheen.

“We acknowledge and approve of the removal of the bill’s language that would have banned drag performances under certain circumstances. We support caucus members voting [with] their district on the bill, including marking themselves as present not voting. To ensure that directly anti-LGBTQIA+ and anti-drag language is not reinserted into the bill, we will continue to monitor SB 12’s movement through the Texas Legislature and its implementation if the Governor signs it into law,” the statement read.

On Monday, most Democrats chose to formally express their opposition to SB 12, instead of selecting “present not voting” like on Friday. Democratic Reps. Alma Allen of Houston and Terry Canales of Edinburg voted yes, according to the Monday recorded vote, but The Texas Tribune later confirmed that this was an error.

Several Democrats also voted in favor of the bill. They were Reps. Bobby Guerra of Mission, Tracy King of Batesville, Armando Martinez of Weslaco, Eddie Morales Jr. of Eagle Pass, Sergio Muñoz Jr. of Palmview and Richard Peña Raymond of Laredo. Rep. Shawn Nicole Thierry, D-Houston, voted no, according to the recorded vote, but her office told the Tribune that this was a mistake.

The House votes on SB 12 didn’t draw the crowds of LGBTQ advocates that filled the Capitol when the lower chamber voted to restrict transition-related care for minors. That bill, which is expected to become law, drew protests that led to altercations with state police. Four Democrats voted for it earlier this month.

During Friday’s House debate over SB 12, Democratic state Rep. Julie Johnson asked if a Miley Cyrus concert would fall under the purview of the bill if the singer had sexually suggestive dancing in her performance.

Shaheen responded that if the performance could be classified as sexually explicit under the bills’ definition, then children should not be present.

Despite the lack of direct reference to drag performers, critics believe the bill could be used to target the popular shows — which could harm the entertainment economy — and LGBTQ Texans.

“We believe it’s a wolf in sheep’s clothing that’s still designed to target drag and the LGBTQ+ community,” said Brian Klosterboer, an attorney with the ACLU of Texas, pointing to the House bill analysis that references a drag show as evidence of the necessity for the bill.

During a House committee debate on the bill earlier this month, supporters of SB 12 said the bill is about protecting kids from seeing sexually explicit content.

“We need to make sure that no child is subjected to sexually explicit performances, and I think this bill is a great start,” said Jonathan Covey, policy director for social conservative group Texas Values.

Klosterboer, who testified against the bill during a House hearing, criticized the bill’s vague language, which could be interpreted differently given the lack of a clear definition of “prurient interest” in Texas law and courts. The broad characterization of sexually oriented performances could criminalize a host of Texas performers, including drag queens.

Without a clear definition in Texas, Klosterboer said the decision to classify something as sexually oriented, or not, could be left up to a jury.

“They allow the attorney general, local governments and prosecutors and police to have this nearly limitless discretion to crack down on any performance that they find sexual,” Klosterboer said.

During the House committee hearing, Democrats raised questions about whether the bill could affect other settings such as football cheerleading performances and restaurants like Twin Peaks. At least one of the bill’s backers said it should and would apply to these other scenarios, while others’ testimonies remain largely focused on restricting drag shows.

Some performers also testified at the House committee meeting that drag has been nothing but a positive force in their life, and that it’s an art form that is not inherently sexual.

“Drag is love. Drag is art. Drag is powerful,” said drag performer Alexander the Great. “Drag has been a part of our culture since Shakespearean times and will continue to be. … Bugs Bunny has been in drag in children’s cartoons. I remember watching ‘Mrs. Doubtfire’ growing up, Robin Williams in drag — that was a family-friendly movie. Drag itself is just art.”

At the same time, some who testified against SB 12 also referenced the expulsion of former state Rep. Bryan Slaton, who was found to have engaged in inappropriate sexual conduct with a 19-year-old aide after giving her alcohol. A prominent anti-LGBTQ politician, Slaton has previously called for banning minors from attending drag shows to protect them from “perverted adults” and “groomers” — a long-standing homophobic and transphobic trope.

Joshua Fechter contributed to this story.

---

Tickets are on sale now for the 2023 Texas Tribune Festival, happening in downtown Austin on Sept. 21-23. Get your TribFest tickets by May 31 and save big!