Judge Rules Texas A&M’s Drag Ban Unconstitutional
The pageant "Draggieland" will go ahead after a federal judge blocked the board of regents from enforcing a drag ban at the university.
A federal judge blocked Texas A&M University from banning a drag show from being held on any of the university’s 11 campuses. The temporary preliminary injunction was issued on March 24 by Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas.
As a result, “Draggieland,” a student-produced drag event, will go on as planned at the Rudder Theatre on the university’s College Station campus this Thursday, March 27.
The pageant — which has sold out the 750-seat Rudder Theatre every year since 2020 — features contestants who wear clothing or makeup that often, but does not always, run counter to their gender identity. The contestants also dance and answer questions about what drag and LGBTQ culture means to them.
“Anyone who finds the performance or performers offensive has a simple remedy: don’t go,” Rosenthal wrote in her opinion, noting that Draggieland is a ticketed event and limited to adult attendance.
In her ruling, Rosenthal found that the Queer Empowerment Council, which organizes the event, was likely to succeed in proving the ban violates the First Amendment.
Rosenthal’s ruling comes after the Texas A&M University System Board of Regents passed a resolution in February banning drag performances from all 11 state university campuses on the grounds that drag — specifically, the idea of biological male performers dressing as women — is allegedly offensive and demeaning to women, “inconsistent” with the university’s core values, and creates a “hostile environment” for women in violation of federal law.
The Queer Empowerment Council sued the university, arguing that the ban violates students’ and performers’ First Amendment rights and engaged in censorship or viewpoint discrimination against those who either do not find drag offensive or don’t hold socially conservative political beliefs.
Rosenthal, a George H.W. Bush appointee, rejected the board of regents’ argument that the Rudder Theatre is a “limited public forum,” noting that the venue can be reserved either by students or by members of the general public, with no evidence that a request to book the venue has ever been rejected.
She noted that a university rule on “expressive activity” says that any advance reservation of campus space is not supposed to be denied based on the content of performances or a group’s viewpoint.
“[T]he Draggieland event is consistent with the other types of events that have been held at the Rudder Theatre previously — plays, musicals, beauty pageants, and speakers. When, as here, ‘a university by policy and practice opens up an area for indiscriminate use by the general public, or by some segment of the public, such as student organizations, such area may be deemed to be a designated public forum,'” Rosenthal said, quoting past legal precedent.
“Even if the Rudder Theatre is considered a limited public forum,” she added, “the Board’s resolution still fails constitutional muster. As discussed in detail below, the ban on drag shows is a viewpoint-based restriction on speech and expressive conduct. Viewpoint-based restrictions are unconstitutional whether the forum is a designated or limited public forum.”
Rosenthal also found that drag is an expressive form of conduct protected by the First Amendment.
“The [Queer Empowerment Council]’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,” she wrote.
“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.”
“We’re overjoyed with today’s decision,” the Queer Empowerment Council said in a statement. “This is another display of the resilience of queer joy, as that is an unstoppable force despite those that wish to see it destroyed. While this fight isn’t over, we are going to appreciate the joy we get to bring by putting on the best show that we can do.”
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