HOUSTON (CN) — As co-owner of a business that stages drag shows on the patio of his parents’ San Antonio restaurant, Richard Montez Jr. is not used to the spotlight — he provides it for others.
One would not know that, however, after watching him get down from the witness stand in his black suit and tie and twerk in a Houston federal courtroom.
He was asked to demonstrate the dance move in a trial over Senate Bill 12, which Republican state legislators say they wrote to bar sexual performances that are harmful to children.
One of the bill’s sponsors said it is meant to protect “children from explicit, hyper-sexualized drag performances in Texas.”
But a Texas assistant attorney general, refuting claims the legislation is unconstitutional content and viewpoint discrimination, had a much different take in closing arguments Tuesday: “This lawsuit is challenging a law that does not exist. There is no ban on drag shows,” said Taylor Gifford.
The ACLU of Texas and attorneys from the Houston office of Baker Botts represent two nonprofit LGBTQ advocacy groups, two drag show production companies and a drag performer who are trying to block the bill with a federal lawsuit they filed early this month
While the challengers argue the bill is a “textbook violation” of their First Amendment rights because it is too broad and could criminalize aspects of several different art forms — dance, musicals, theater, synchronized swimming, even Dallas Cowboys cheerleaders’ routines — drag was the focus of a two-day consolidated preliminary injunction hearing and trial on the merits this week before Senior U.S. District Judge David Hittner.
Hittner, a Ronald Reagan appointee, focused on whether it should be up to parents to take their kids to drag shows. He also asked if existing Texas laws already bar the conduct the bill will prohibit if it takes effect Sept. 1 as scheduled.
Montez said he and his partner, parents of five boys ages 8 to 13, first put on a drag show in their backyard for friends and family. “We had such a good response, we thought ‘this could work as a business.’ My parents had the same idea,” he testified.
So in 2022 Montez and his spouse started 360 Queen Entertainment LLC, a plaintiff in the lawsuit.
They charged $65 for tickets to their “Bottoms Up Diva Dinner” where drag queens sashayed among diners. Tickets regularly sold out with more than 100 people attending the adults-only shows, according to Montez.
“We wanted an environment where adults could enjoy somewhere and not have to worry about other people’s kids. And that’s why it’s 18 and up,” Montez explained. “We have made exceptions where parents have pleaded to let their kids in with them.”
While there is only one door to the restaurant’s patio and his staff restricted entrance, Montez said children occasionally got in and ran through the shows to get to a field behind the patio. And any youths walking by in an adjacent parking lot could see the patio entertainment.
Montez said the drag queens wore breast plates — vests outfitted with fake breasts — and butt pads. And sometimes they invited men in the audience to spank their butts.
Because SB 12 bars “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics” and he cannot ensure children will not see the performances, Montez said Friday was his company’s last show because he fears the repercussions.
SB 12 imposes criminal penalties on scofflaw performers of up to a year in jail, and fines of up to $10,000 on business owners for allowing sexual oriented shows with anyone under 18 in the audience.
The statute also gives prosecutors, municipalities, counties and the Texas attorney general discretion to cancel events that they believe will feature performers engaging in prohibited sexual conduct.
Brigitte Bandit, an Austin drag show performer and producer and a plaintiff in the lawsuit, also testified she is worried SB 12 will lead to her arrest.
One of its definitions of sexual conduct is “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals.” And that is a problem for Bandit, who has been doing drag full-time for five years and likes to perform as Dolly Parton.
One of the plaintiffs’ attorneys showed a photo submitted as an exhibit and asked Bandit to explain the picture. “That’s me. I’m dressed as the Little Mermaid performing with a dildo,” stated Bandit, wearing a pink dress and blonde wig on the witness stand.
She also recounted how she used a dildo while lip-synching Mariah Carey’s “All I Want for Christmas is You,” to laughter from the 40 people in the gallery.
Though she mainly performs at adults-only Austin nightclubs and gay bars, Bandit said some of the venues’ stages can be seen from windows of surrounding high-rises, and from adjoining streets.
“I’ve had families with children watch from the sidewalk … Sometimes they talk to me through the fence after the show,” she said.
Bandit, who uses a pseudonym for safety concerns, added it is typical for showgoers to tuck money into her cleavage. And that’s also a concern for her since SB 12 prohibits “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person.”
The drag queen testified she fears the legislation will cause her bookings to fall off with venue owners apprehensive of fines. “I think SB 12’s goal is to push drag and queer artistry out of public places,” she said.
But Jonathan Stone, a Texas assistant attorney general, focused on what the plaintiffs’ photo-exhibits of drag queens performing did not show: children in the audience.
He argued the plaintiffs lack standing because they all said they tailor their shows to the audience, and nix the risqué behavior if children are in attendance. “There’s no evidence the law will be enforced against them,” Stone asserted.
Because SB 12 delegates enforcement authority for the law to local prosecutors, municipalities, counties and the Texas attorney general, the plaintiffs named, in addition to the AG, their home counties, cities and local officials as defendants.
But counsel for several defendants questioned why they had been sued. Ramon Viada, attorney for the city of Abilene, noted that it had issued plaintiff Abilene Pride Alliance a permit for its annual Pride parade, set for Sept. 30.
Hittner took the matter under advisement. He said if he decides to enter a temporary restraining order against the law it will be on Thursday. He told the parties once they submit proposed findings of fact and conclusions of law he will try to issue a final judgment within two weeks.
“Thank you for putting on one of the most interesting and important cases I’ve had in 37 years on the federal bench,” he said.
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