Judge Blocks Texas A&M Drag Ban: Trump Executive Orders "Cannot Override" First Amendment

The Texas A&M Board banned an LGBTQ+ group from holding a drag event on campus. A federal judge has ruled they must be allowed to proceed with the event.

Texas A&M // Stuart Seeger // Creative Commons

Judge Lee H. Rosenthal, a federal judge appointed by President George H. W. Bush, has blocked Texas A&M University from banning drag events on campus. The ruling comes in response to a lawsuit filed by the student-led LGBTQ+ group Queer Empowerment Council, which had hosted the annual “Draggieland” event for five years without incident. In her decision, Rosenthal found that drag is a protected form of artistic expression under the First Amendment, and that Trump’s executive order targeting so-called “gender ideology” cannot supersede students’ free speech rights.

“Performances by men dressed as women are nothing new. Men have been dressing as women in theater and film for centuries. It is well-established among scholars of Shakespeare’s literary works that, when his plays were written and performed, female characters were played by young men dressed in women’s attire. See Royal Shakespeare Company, Women on Stage…” the court wrote, before concluding that the drag show qualified as protected First Amendment conduct: “The theatrical performance and the explicit discussion of the intended message are both protected under the First Amendment.”

The Texas A&M Board of Regents, in a letter denying the student organization permission to host its drag event, claimed that drag is “inconsistent” with the university system’s values—but insisted the decision was unrelated to the show’s speech or viewpoint:

“[T]he Board finds that it is inconsistent with the System’s mission and core values of its Universities, including the value of respect for others, to allow Special Event Venues of the Universities to be used for drag shows that involve biological males dressing in women’s clothing, wearing exaggerated female make up and/or exaggerated prosthetics meant to parody the female body type,” the letter stated. It went on to claim such performances “are likely to create or contribute to a hostile environment for women contrary to System anti-discrimination policy and Title IX,” alleging that drag shows often involve “unwelcome and objectively offensive conduct based on sex... particularly when they involve the mockery or objectification of women.”

The judge was not persuaded. In a separate line of argument, the state stated that the university had to ban the show because it promotes “gender ideology,” which it claimed was prohibited under a recent Trump executive order. “Given that both the System and the Universities receive significant federal funding, the use of facilities at the Universities for Drag Show Events may be considered promotion of gender ideology in violation of the Executive Order and the Governor’s directive,” the state wrote.

The judge pointed out the clear contradiction in the state’s argument—on one hand, claiming the drag show ban had nothing to do with speech or expression, and on the other, arguing that the show’s expressive content warranted the ban. “The Board’s contention that drag shows, and Draggieland, are not expressive conduct directly contradicts the Board’s simultaneous assertion that drag performances promote an ideology,” the judge wrote.

“The executive order cannot override first amendment protections,” said the judge, replying to this rationale.

This order is one of several across the United States that have blocked drag bans, contributing to a growing body of case law affirming that drag is a form of artistic expression protected by the Constitution. It is also significant that the ruling came from a judge appointed by George H. W. Bush—at a time when gender and sexuality issues have become increasingly polarized in the courts, a Republican-nominated judge siding against a drag ban marks a notable moment.

“Today is a resounding victory for the First Amendment at public universities in Texas,” said Adam Steinbaugh, an attorney with the Foundation for Individual Rights and Expression, who argued last week at the district court. “The court reaffirmed that state university officials cannot block student expression they claim is offensive. State officials should stop trying to score political points at the expense of students’ First Amendment rights.”

Tickets to the show became immediately available following the ruling, and it now appears set to proceed on its originally scheduled date of March 27.