A federal appellate court has struck down a ban on campus drag shows at West Texas A&M University, reversing a lower court ruling.
A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 that West Texas A&M President Walter Wendler acted unconstitutionally when he canceled an annual student charity drag event in 2023 and 2024, stating in a campus email that cross-dressing is lewd and demeaning to women.
Fifth Circuit Court Judge Leslie Southwick wrote in his majority opinion Monday that a district judge erred in excluding the student LGBTQ group Spectrum WT from First Amendment protections of free expression in a public forum because the show conveyed no particular message.
“The viewers of the drag show would have been ticketed audience members attending a performance sponsored by LGBT+ student organizations and designed to raise funds for an LGBT+ suicide-prevention charity,” wrote Judge Southwick, a George W. Bush appointee. “Against this backdrop, the message sent by parading on a theater stage in the attire of the opposite sex would have been unmistakable.”
Judge James L. Dennis, a Clinton appointee, joined him in the majority. Judge James C. Ho, a Trump appointee, dissented.
“Drag is not inherently expressive,” wrote Judge Ho, a former Texas solicitor general.
The Foundation for Individual Rights and Expression, a Philadelphia free speech group that represented the LGBTQ students in court, hailed the decision as a victory over campus censorship.
“We’re overjoyed that our clients will now be able to express themselves freely, and we’ll be watching to make sure that President Wendler obeys the law of the land while the case proceeds,” said Adam Steinbaugh, a FIRE attorney.
It remains unclear whether the public campus in Amarillo will appeal the circuit court’s decision to the Supreme Court.
A West Texas A&M spokesman said in an email that the university does not comment on pending litigation.
Mr. Wendler’s March 20, 2023, email banning Spectrum WT from using campus facilities came 11 days before the drag show was scheduled to take place.
He informed students, faculty and alumni that there was “no such thing” as “a harmless drag show” and compared the practice to blackface.
“Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent,” Mr. Wendler wrote. “Such conduct runs counter to the purpose of WT.”
The LGBTQ student group and FIRE filed their lawsuit in an Amarillo federal courthouse four days later, arguing that the ban violated their right to use public university space for a “PG-13” performance.
U.S. District Judge Matthew Kacsmaryk, a Trump appointee, sided with West Texas in a September 2023 ruling that the “proposed event does not clearly convey or communicate a discernible, protectable message.”
While the students appealed his ruling, the university banned the show a second time in March 2024.
Texas is one of several states that have passed laws in recent years restricting drag shows, which critics say sexualize young children and demean women.
Monday’s judicial decision is the second this year to prevent Texas public colleges from enforcing such bans.
In March, U.S. District Judge Lee H. Rosenthal ruled that Texas A&M University misused a state law and an executive order from President Trump to cancel an annual “Draggieland” performance.
“It is a ticketed event; only those who want to attend do so,” wrote Judge Rosenthal, a George H.W. Bush appointee. “Anyone who finds the performance or performers offensive has a simple remedy: don’t go.”
