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Thursday, July 18, 2024 | Back issues
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Texas House passes sweeping obscenity bill as bipartisan truce on drag falls apart

Republicans worried about the constitutional implications of banning drag outright. Democrats feared an even worse bill. Those concerns were no match for the realities of modern culture-war politics.

(CN) — The Texas House on Sunday gave final approval to one of its core culture-war priorities this session: A bill first pitched as a way of protecting children from drag performers, which in the final days of the legislative session morphed into much vaguer proposed restrictions on so-called "sexually oriented performances," apparently including those in private homes.

Republican Lieutenant Governor Dan Patrick, an avowed culture warrior, had listed Senate Bill 12 as a priority for him — though it's worth stressing that the final version of SB 12 differs radically not only from what Republicans first proposed, but also from what many Democrats thought they were agreeing to.

The bill on Sunday passed the Texas House 87-54 on a largely party line vote and now heads to the desk of Republican Governor Greg Abbott. A handful of Democrats joined Republicans in supporting the final version, including Shawn Thierry, a representative from the Houston area who this month also voted in favor of new GOP-backed restrictions on gender-affirming care for transgender youth.

It was a fitting end for SB 12, which has been on a strange journey through the Texas Capitol during a legislative session marked by GOP infighting and corrosive culture-war issues. The bill started as an outright attack on drag, only to change into a more general obscenity bill once it reached the House. And yet the final version includes new, controversial and legally dubious provisions, making it in some ways an even more extreme bill than a clear-cut drag ban would have been.

For a moment, SB 12 seemed like a rare and almost happy story of compromise in an era characterized by partisan rage.

The original bill described any form of cross-dressing by a performer as "sexually oriented," prompting concerns that the bill could be used to target not only drag performances but also, for example, plays by Shakespeare. And yet when by the time SB 12 reached the House floor earlier this month, that language had been taken out, turning SB 12 into a broader and vaguer prohibition on minors attending "sexually oriented performances."

Even more remarkably, the drag language had been removed by an unlikely person — Matt Shaheen, the House sponsor of the bill, a Republican from the Dallas area and a member of the staunchly conservative Texas Freedom Caucus. Shaheen declined to comment for this story on why he chose to remove those provisions.

Shaheen was concerned about the constitutionality of banning drag outright, according to a person familiar with the matter. Shaheen himself said as much to lawmakers when on May 19 he introduced his new version of the bill to the House floor, warning lawmakers that a direct ban on drag could face constitutional challenges.

In response to this relatively less divisive bill, many Democrats that day voted "present not voting" in an apparent show of goodwill. The move shocked even some reporters, who had expected a forceful defense of drag from Democrats.

As Courthouse News first reported, the explanation was that some Democrats, moderate Republicans and lobbyists — including some drag businesses in Texas — hoped that if a watered-down version of SB 12 passed, they could avoid the worst parts of the bill in a state dominated by Republicans.

Later reporting indicated that the Texas LGBTQ Caucus was taking the same strategy and had encouraged lawmakers to vote neutrally — though the caucus has stayed mum on this front. Mary González, an El Paso-area Democrat and chair of the caucus, did not respond to multiple requests for comment by press time.

If this was indeed the Democratic strategy, it appears that Democrats got played. Not only did they miss a chance to fight or amend SB 12, but they also largely capitulated to Republican talking points about the supposed dangers that drag performers pose to children.

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In a statement after that first vote, González said Democrats voted neutrally because "anti-LGBTQ" language was removed and "we also ... don’t want children exposed to sexually explicit performances." That argument leaves out an important detail: Talk of alleged harm to children was always at least partially a Republican dog-whistle, a nod to incendiary far-right claims about widespread child abuse. These claims have come up in relation to a variety of culture-war issues, from transgender identity to allegedly "obscene" books in school libraries, and are inseparable from conspiracy theories like QAnon, which posits that shadowy elites are regularly abusing and "grooming" children.

Even after the truce, some did continue to speak candidly about the stakes of SB 12 and the rhetoric that surrounded it. A vast majority of drag performers continued to oppose SB 12, fearing that with or without explicit drag language, the law would nonetheless be used to target them. Many LGBTQ and civil rights groups, including ACLU and Equality Texas, felt the same and continued to forcefully oppose the bill.

Some Democrats also voted against that watered-down version of SB 12, arguing that even with the changes, SB 12 was just bad policy.

"I have a pretty high bar for creating new crimes," Representative Erin Zwiener, an Austin-area Democrat who has consistently voted no on SB 12, told Courthouse News last week. Like other critics of Shaheen's proposal, Zwiener raised concerns not only about the ambiguity of SB 12 but also about parental rights.

"Parents make bad decisions all the time," Zwiener said. "I don't think many of those choices should be criminal."

The differences in the House and Senate versions of SB 12 set up a showdown in the form of a "conference committee," a special type of committee called when the two chambers cannot agree on the language of the bill.

It was in that committee, it seems, that the backstabbing and politicking really ramped up.

Unhappy with the removal of explicit drag language, Republicans in the committee added new language that some feel is even worse. They defined as "sexually oriented" any "sexual gesticulations using accessories or prosthetics that exaggerate male or female characteristics." Good luck parsing out what that means: "Gesticulation" is not apparently defined anywhere in the Texas penal code, and Merriam-Webster dictionaries describe it as "the act of making gestures."

In addition and even more controversially, the latest version of SB 12 removed references to commercial premises — raising that prospect that Texans could be prosecuted for acts done in private homes.

As a result, even the very nonpartisan Texas District & County Attorneys Association came out criticizing the bill, saying on Twitter that this new language was "not going to work." The organization argued that because SB 12 applies to anyone under 18 even though the age of consent in Texas is 17, the bill could criminalize foreplay that led up to legal sex.

To sum it all up: Democrats effectively agreed to take a weaker position on SB 12 in exchange for concessions from Republicans — but in the end, those concessions were much smaller than some Democrats hoped. In remarks to the House floor on Sunday, Democratic Representative Mary González alluded to this betrayal.

Democrats and Republicans had "worked together" on SB 12, she said, but this new version was "so different" from what Democrats thought they'd agreed to. By then, it was much too late. Republicans had the votes to easily pass SB 12 through the House, a fact that Democrats should have perhaps given more weight.

At press time, it remains to be seen what exactly the implications of SB 12 will be should Governor Abbott sign it. Rather than passing a clear ban on drag, the Texas statehouse has instead passed a remarkably vague bill targeting "sexually oriented performances" in front of minors.

The bill raises more questions than it answers. Might cheerleaders, musicians or dancing teens appeal to a "prurient interest in sex," as referenced in the new law? Do breast implants count as "accessories" that exaggerate female characteristics? Local officials in Texas might soon have to ask these complicated questions about obscenity — and in a state as large as Texas, the answer might vary widely by city and county. The true scope of SB 12 will likely be settled in the courts.

One thing is clear, though: The biggest losers in this fight are drag performers themselves. While they managed to get clear references to drag removed from the bill, the final version is undoubtedly still a threat to their community.

Drag performers endured months of threats and online harassment from far-right agitators who characterized them as inherently inappropriate and sexual, including from one far-right group who called them "anti-God" and "driven by child pornography." Democrats thought that if they held their tongue on this toxic rhetoric, they could work with Republicans to pass less divisive policy. They were wrong, and drag performers were the sacrificial lamb.

Follow @stephentpaulsen
Categories / Arts, Civil Rights, Politics

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