USA: Federal appeals court reverses ban on drag shows at Texas A&M university

The US Court of Appeals for the Fifth Circuit on Monday reversed a lower court’s decision to uphold a ban on drag shows at West Texas A&M University. The appeals court stated that the plaintiffs had shown sufficient evidence that there would be harm to their First Amendment rights as a result of the ban, meeting the preliminary injunction standard of “substantial likelihood of success on the merits.”

The appeals court’s opinion focused on whether the drag show in question met the legal standard of constituting “expressive conduct,” which is required to implicate the First Amendment. The court defined such conduct as intentionally “convey[ing] one or more messages,” and stated that in this instance “it is evident that a message in support of LGBT+ rights was intended.” The court further stated that the show was to be held in a “designated public forum” open to all, and that the defendants failed to show why it would warrant “selective exclusion.” The appeals court concluded that the “district court erred in concluding that the plaintiffs were not substantially likely to succeed on the merits of their First Amendment claim.”

Spectrum WT, an LGBT+ group at the university, sought a preliminary injunction in March 2023 against University President Walter Wendler’s cancellation of an on-campus drag show. The drag show was intended to fundraise for the Trevor Project, an organization that aims to lower rates of suicide in the LGBT+ community. President Wendler justified the cancellation on the basis that “drag shows are derisive, divisive and demoralizing misogyny” and stated that he would not “condone the diminishment of any group… even when the law of the land appears to require it.” He clarified that his contention was with the drag show itself, rather than its support of the Trevor Project. Following the denial of the injunction, the plaintiffs sought emergency action from the Supreme Court to allow it to hold a show in March 2024. This request was denied.

The Foundation for Individual Rights and Expression (FIRE), which represented the plaintiffs, described the appeals court decision as a “victory for student expression on campus.”

This decision has wider implications for the application of First Amendment rights to drag shows, which is a subject of significant ongoing contention. Several states, such as Tennessee and Florida, have passed laws restricting drag performances. These laws have and continue to face constitutional challenges from numerous rights groups.

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