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

The Texas House gave initial approval to a bill restricting children from seeing sexually explicit performances on Friday. 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 88-12 to advance the legislation. It defines a sexually explicit performance as one in which someone is nude or appeals to the "prurient interest in sex." SB 12 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.

On Friday, 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.

Seven Democrats joined Republicans in voting for the bill. Those Democrats were Reps. Philip Cortez of San Antonio, Bobby Guerra of Mission, Armando Martinez of Weslaco, Eddie Morales Jr. of Eagle Pass, Sergio Muñoz Jr. of Palmview, Richard Peña Raymond of Laredo and Shawn Nicole Thierry of Houston.

All 12 votes against the bill came from Democrats, but the bulk of the party did not formally oppose SB 12, choosing instead to select "present not voting."

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.

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.

The House vote Friday didn’t draw the crowds of LGBTQ advocates that filled the Capitol when the House 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 that bill earlier this week.

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 "breastaurants" 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.

Given the bill no longer includes references to performers "exhibiting" as the opposite gender, it’s not clear if the Senate is amenable to the House’s changes. Following one final vote from the House, the bill will return to the upper chamber, where senators can either accept the House’s changes or ask for a conference committee to iron out the differences.