Judge Kacsmaryk Compares Drag To Blackface, Allows College Campus Drag Ban In Texas
The judge also ruled that drag shows do not convey any message about gender subversion, exempting it from first amendment protections.
On Saturday, Jan. 17, far-right judge Matthew Kacsmaryk issued one of his most extreme rulings yet, finding that West Texas A&M can ban drag performances on campus. In reaching that conclusion, Kacsmaryk discarded long-standing First Amendment precedent and made demeaning assertions about drag itself, including a comparison to “blackface.” The 46-page ruling is riddled with strained reasoning and misapplications of law and, unless overturned by a higher court, will continue to prevent the campus LGBTQ+ organization Spectrum WT from holding its drag show on campus—an event that raises funds for LGBTQ+ suicide prevention hotlines.
Spectrum WT is an LGBTQ+ student organization at West Texas A&M. The group previously held drag performances on campus, including in 2019, without incident. That changed in 2023, when University President Walter Wendler announced a ban on drag shows, writing in a campuswide email that the university would “not host a drag show on campus” because, he said, “every human being is created in the image of God, and therefore, a person of dignity.” Wendler went on to justify the ban by characterizing drag as “misogynistic,” “derisive,” “divisive,” and “demoralizing,” even comparing it to blackface. He concluded by writing:
“A harmless drag show? Not possible. I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it. Supporting The Trevor Project is a good idea. My recommendation is to skip the show and send the dough.”
(The full email is attached at the end of the story)
The dispute has since evolved into a protracted legal battle winding its way through the courts. Judge Kacsmaryk first denied a preliminary injunction, allowing the ban to take effect. That decision was briefly reversed by a divided panel of the Fifth Circuit, before the full court vacated the panel ruling and opted to rehear the case en banc. Now, following a full bench trial, Kacsmaryk has issued a final ruling on the merits, holding that West Texas A&M may ban drag performances on campus.
While the decision permitting a campus drag ban is itself extreme and departs from precedent in similar cases nationwide, Judge Kacsmaryk’s reasoning is particularly egregious. In his ruling, Kacsmaryk accepts University President Walter Wendler’s framing wholesale, concluding that the ban is justified because Wendler likens drag to blackface and claims it “mocks” women. Embracing that comparison, Kacsmaryk writes that “the only difference is that one performance is ‘abhorred by cultural elites’ while the other is in vogue—at least for now.”
This framing, however, fundamentally misunderstands both drag and its comparison to blackface. Blackface was created by white performers to dehumanize a marginalized group and reinforce racial subjugation. Drag, by contrast, emerged from marginalized communities themselves as a form of self-expression, community building, and survival. It has existed across cultures and centuries, from Shakespearean theater to Harlem ballroom culture to contemporary performance. In its modern form, drag conveys meaning about gender identity and expression, deliberately subverting gendered expectations around clothing and performance—placing it squarely within the realm of activity protected by the First Amendment.
Judge Kacsmaryk also sidesteps these First Amendment protections in a separate section of his ruling, where he claims—without explanation, by fiat alone—that drag carries no discernible message. During the proceedings, Spectrum’s former president testified that drag performances convey messages including “bending gender norms,” among others. Kacsmaryk dismisses that testimony, writing that it is unclear whether any drag performances would feature cross-dressing that communicates such a message—a conclusion that requires a willful disregard for what drag is and how it functions. He further asserts that “this court cannot find that there is great likelihood that this message would be understood by those who viewed it,” effectively imagining a world in which audiences attend drag shows without recognizing their commentary on gender norms.
This is not the first time Judge Kacsmaryk has issued a controversial and legally dubious ruling targeting LGBTQ+ people or advancing far-right causes. His record includes a 2022 decision opposing workplace protections for LGBTQ+ employees, a 2024 ruling striking down Biden administration Title IX protections for LGBTQ+ students, a 2025 decision siding with employees who misgender colleagues and restrict bathroom access based on gender identity, and his widely criticized 2023 attempt to suspend FDA approval of the abortion medication mifepristone. None of this is coincidental. Before his appointment to the bench—where he continues to preside over cases of national consequence—Kacsmaryk served as deputy general counsel at First Liberty Institute, a conservative Christian legal organization that routinely litigates against LGBTQ+ rights.
Kacsmaryk’s ruling stands in sharp tension with recent decisions elsewhere in the country. In June, the 11th Circuit found that drag bans create a “chilling effect” on protected speech, whereas a federal judge issued an injunction against Montana’s drag ban after concluding the law violated the First Amendment by censoring expression without proving obscenity. Even courts that have allowed drag restrictions to proceed have emphasized that such bans may be enforced only against obscene performances—not family-friendly shows. Whether this ruling endures may now hinge on the Fifth Circuit’s pending en banc hearing on drag bans. After previously blocking similar restrictions, the court vacated its own decision to rehear the issue before its full, heavily conservative bench—a showdown that will unfold this week and could determine whether Kacsmaryk’s reasoning holds permanently in states belonging to the circuit.
See the full decision here:
See Walter Wendler’s full email banning drag on campus here:
The comparison to blackface is erroneous simply because blackface is not formally banned or outlawed. It’s socially repugnant and therefore may cause harm to one’s reputation…but it’s not legally or formally banned as they have done with drag.
Isn't it funny how it always seems to be white people comparing drag to blackface? Maybe I'm wrong but I don't feel like I see black people making this comparison.