SAN ANTONIO — A senate bill originally meant to prevent anyone under 18 from being exposed to drag shows now has language so broad that it could put many kinds of performances out of business, at least according to the American Civil Liberties Union.
The first draft of SB 12 included one definition for "sexually oriented performance" that included "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..."
That language was later removed but the final version of the bill in the legislative process but the version signed by Governor Greg Abbott still includes overly broad language according to the ACLU.
The final version of the bill, which is meant to regulate "sexually oriented performances, now includes one definition of "sexual conduct" reads: "The exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics."
The law goes into effect on September 1 and violations will be a class A misdemeanor, which is punishable by up to a year in prison or a $4,000 fine. The bill would apply to any show or performance that is either public or where minors are allowed to attend.
Pride San Antonio Parade Director James Poindexter told KENS 5 their parades have had a drag element for around 20 years and now it's not clear what is legal and what isn't.
"Drag is art. If you do drag as art you are going to artistically make yourself appear to be more like a woman or a man," Poindexter said. "What makes a certain accoutrement that someone has for their costume sexual? I think they need to define that in the law."
The bill also defines a "sexually oriented performance" as "any other performer who engages in sexual conduct; and (B) appeals to the prurient interest in sex."
ACLU staff attorney Brian Klosterboer said the phrase "appeals to the prurient interest in sex" doesn't have a more specific legal definition and opens the door to civil lawsuits simply based on opinion.
"It's so vague and broadly written that, even without the mention of drag, it subjects all kinds of performers across Texas to criminal penalties. It would also impose fines on Texas businesses," Klosterboer said.
Klosterboer told KENS 5 the language that mentions accessories or prosthetics "would very clearly target drag performers" but is much broader.
He said the language "appeals to the prurient interest in sex" could also be used to target other performances.
"It targets things like Shakespeare. It targets performers like Miley Cyrus dancing on stage, Michael Jackson Impersonators dancing in a sexual way," Klosterboer said. "This bill is so broadly written that even kissing on stage could be considered sexual."
Klosterboer also said there are other lines in the bill that could affect any stage play that suggests that sex happened under a blanket or behind a curtain. He said city governments, county prosecutors, or the Texas Office of the Attorney General could all use the new bill to sue a venue owner.
Poindexter said LGBTQ community would likely be wary of putting together any shows or parades as the law goes into effect, or at least until a legal challenge reveals how the law will be enforced.
"The concern is always going to be there until it is delineated one way or the other. There is going to be a concern until the (legal) argument is over with," Poindexter said. "Having it under appeal or tied up in the courts, the argument will still exists about what it actually means."
The ACLU issued the following statement after Abbott signed the bill:
"SB 12 is a clear affront to the free expression of all Texans, particularly members of our LGBTQIA+ community. The bill will not take effect until September 1st, but we worry that the threats and harassment it fosters will be felt before then, especially during Pride month. If anyone is impacted by this bill, we encourage them to reach out to us, and we are actively exploring all possible options to stop SB 12 from taking effect."