By William Melhado, The Texas Tribune
West Texas A&M University students Bear Bright and Marcus Stovall held their breath for months.
Yes, university President Walter Wendler canceled last year’s on-campus drag show. But as a lawsuit accusing Wendler of violating students’ First Amendment rights wended through the courts, Bright and Stovall booked a student center banquet hall, secured insurance and organized nearly a dozen performers for the Don’t Be a Drag performance slated for Friday night.
The two students at the university in Canyon, about 20 miles south of Amarillo, didn’t approach the new event as a salvo in the larger battle over freedom of expression in America that is still pending before the 5th U.S. Circuit Court of Appeals. To them, it was about producing a joyful student performance celebrating queer identities — the kind of show that happens every night without controversy in other parts of Texas.
Still, they knew that any time, Wendler could block the show from happening on campus. But they also thought that Wendler’s reasoning for the previous cancellation exemplified a public official stifling expression because he disagrees with the content — and was the kind of clear-cut censorship the federal court system would prevent from happening again.
But last week, the U.S. Supreme Court dashed those hopes. The high court refused, at least for now, to wade into the case and its free speech debate. On Monday, Wendler did exactly what Bright and Stovall feared: He again forbade a drag show from being performed on campus.
“It was very discouraging and depressing at first,” Bright said.
The Supreme Court only declined to block Wendler from canceling another drag show while a lawsuit over the previous cancellation plays out at the appellate level. Justices were not considering the underlying legal arguments about whether Wendler abused his authority to squash the performance on the basis of his disapproval of the students’ viewpoints. Those questions are still before the 5th Circuit court, which has also declined to issue an injunction against Wendler until it hears arguments in the case in April.
The West Texas lawsuit comes a year following Republican state lawmakers’ attempt to classify all drag shows as obscene. But after a video of a male GOP legislator wearing a dress for a school theater project surfaced, state leaders scrapped that version of a bill and eventually passed a law that prohibits certain drag performances in front of children. But even that watered-down version of Senate Bill 12 has been deemed unconstitutionally overbroad and vague. An appeal of that decision is also before the 5th Circuit.
SB 12 came on the heels of an anti-drag panic whipped up by a small but influential cadre of activists and extremist groups who routinely characterized all drag as inherently and nefariously sexual, regardless of the content or audience. Such claims were then used to justify harassment of the LGBTQ+ community, often under the guise of protecting children.
“It’s part of the national mentality,” said Claudia Stravato, a part time state and local government faculty member at West Texas A&M. “We kind of get morally hysterical in this country every few years.”
The potential constitutional showdowns over drag shows also come in an era when Texas officials have relied on new state laws, the attorney general’s office and a newly conservative Supreme Court to help redraw the legal boundaries on everything from abortion and illegal immigration to what kinds of health care transgender children can access.
And as a legal limbo persists, LGBTQ+ residents like Bright and Stovall acutely feel politically and socially targeted in a part of the state where cultural acceptance of queer people already lags behind the state’s big cities.
“It kind of feels like that LGBTQ+ and queer people aren’t welcome anywhere near here,” Bright said Thursday, still recovering from Wendler’s disorienting cancellation earlier this week. “Just because we’re gay or bi or trans … we’re just not allowed to exist in this area.”
“Your own path”
Myss Myka is one of the most prominent drag queens in the Texas Panhandle with a performance career that’s spanned nearly a decade. Based in Amarillo, she’s mentored a number of drag artists over the years, including West Texas A&M students.
She was all set to host the on-campus show Friday, before Wendler canceled it.
The need for student-led drag shows, she said, is to create a sense of community for young people who are questioning their place in the world and trying to find connections in it.
“We tell people that, ‘We’re here for you, we’ll answer any questions that you have and, most importantly, we want you to be able to find your own path and find people who you can share your struggles with,’” Myka said.
Throughout the years, Myka has noticed the queer-friendly community in Amarillo grow. With a population of more than 200,000 Amarillo is by far the largest city in the Panhandle. But it anchors a largely rural region that remains a staunchly conservative area that is several hours away from any of Texas’ sprawling metro areas where drag shows are routine and LGBTQ+ people hold public office.
Myka said the strength and influence of the region’s religious groups and extremist organizations fuels safety concerns every time she takes the stage.
Stovall, who had planned to perform on Friday dressed in an homage to English novelist Clive Barker’s character known as Pinhead in the movie “Hellraiser,” shares those safety concerns living in Canyon south of Amarillo.
“If I tried to hang up a pride flag in my window, I’d probably get a rock through it within an hour,” Stovall said.
After last year’s drag show was canceled, organizers eventually found a venue off-campus where they staged a make-up performance. Myka hosted that show. With Friday’s showcase canceled, she’s now focusing on emotionally supporting performers as they figure out what to do next.
“As queens, we’re always kind of prepared for any kind of situation we’re in,” she said.
Same subject, different conclusions
Since taking the helm of West Texas A&M in 2016, Wendler, who is known for his outspoken Christian beliefs, has presented himself as the answer to what conservative lawmakers and activists see as a proliferation of liberal agendas and silencing of conservative views in higher education.
When he banned student-led drag shows on the university’s campus last year, he said it was because the performances degrade women.
“No one should claim a right to contribute to women’s suffering via a slapstick sideshow that erodes the worth of women,” he said at the time.
He cited those same reasons in another all-campus email on Monday, canceling the second show. He also pointed to the new state law, SB 12, as a reason for denying the students’ permit. Originally billed as legislation that would prevent children from seeing drag shows, lawmakers eventually landed on language that doesn’t directly reference people dressing as the opposite gender. Instead, the legislation prohibits any performers from dancing suggestively or wearing certain prosthetics in front of children.
A federal judge in Houston blocked the state from enforcing the law and issued a 56-page ruling concluding that Texas’ new law was so vague that cheerleading and dancing could be construed to be violations.
“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” the ruling reads. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection.”
Organizers of the drag show said it was disingenuous for Wendler to cite SB 12 as a reason to shut down the performances since the law currently can’t be enforced.
“That just really miffed me,” said Bright.
When he and Stovall sought court relief from Wendler’s previous drag ban, their case came before U.S. District Judge Matthew Kacsmaryk, the sole sitting judge in the Amarillo federal court district and an outspoken opponent of LGBTQ+ rights. Former President Donald Trump appointed Kacsmaryk to the bench in 2019. Before that, the judge was deputy counsel for the First Liberty Institute, a deeply conservative religious liberty law firm.
Republican Texas Attorney General Ken Paxton and private litigants frequently file their most contentious lawsuits in Kacsmaryk’s court. And on everything from immigration and abortion drugs to teens’ access to confidential contraception, they largely achieved their desired outcome.
Unlike the Houston judge who blocked Texas’ so-called drag show ban, Kacsmaruk ruled that not all drag shows could be considered “expressive conduct” and he sided with Wendler.
Now both cases, one against SB 12 and one against Wendler, are before the U.S. 5th Circuit Court of Appeals. Oral arguments in the students’ case are slated for April.
Peter Steffensen, a law fellow with the First Amendment Clinic at Southern Methodist University Dedman School of Law, said the appellate court now has to grapple with a situation in which two lower courts came to different conclusions on the same subject matter.
“It’s a real concern about whether or not the court will impose some sort of rule that restricts the free expression of ideas and performance art in order to, as they say, protect minors,” Steffenson said. His law clinic filed a brief in support of the students.
Across the country, other federal courts are fielding similar questions. In November, the U.S. Supreme Court refused to reinstate a Florida law that penalizes businesses for allowing children to view drag shows until a lower court fully considers the case.
A surprise rejection
Wendler is not the only Panhandle official to effectively block a drag show.
The Amarillo Area Transgender Advocacy Group’s Easter event in a Canyon park last year featured drag performers, including Myka. One protester showed up wearing military fatigues and flashing the Nazi salute. But organizers positioned food trucks in a way that blocked him from most attendees’ sight.
Off-duty police officers hired as security told AATAG board president Sam Burnett, who is transgender, that they had no issues, found the organization easy to work with and offered to serve as security again this year.
But when AATAG filed for a permit for this year’s event, Canyon officials denied them, saying police officers last year witnessed public safety issues and lewd behavior.
“The group’s permit was denied due to issues at their 2023 event. This decision was made in an effort to safeguard the use of Canyon’s public spaces and all of those who visit them,” Megan Nelson, communications director for the city told The Texas Tribune in a statement.
City officials declined to provide details about the alleged issues, but said the group’s application fee had been returned.
If police officers did witness something inappropriate at the 2023 event, “Why was it not addressed then? Why was it not addressed for an entire year?” Burnett wondered.
Burnett said city officials cited the state’s obscenity law in denying this year’s application. But that doesn’t make sense to him.
“This is no different than women who are competing in a pageant,” Burnett said of drag shows. “It is a performance of art. And so why should any performance of art be hidden or not accessed?”
Burnett and other Panhandle residents said the political environment has become increasingly hostile to LGBTQ+ residents, mirroring much of the rhetoric lawmakers in Austin have adopted to push legislation attempting to reshape the lives of queer Texans.
During the 2023 legislative session, Republican lawmakers successfully barred transgender university athletes from participating on sports teams that aligned their gender and banned adolescents from accessing gender-transitioning care like puberty blockers and hormone therapy.
The author of that health care ban for trans kids was state Rep. Tom Oliverson, R-Cypress, who announced Thursday that he will challenge incumbent Texas House Speaker Dade Phelan, a fellow Republican, for the leadership position. Top GOP leaders have attacked Phelan as insufficiently conservative as they attempt to push the Legislature further rightward.
But there have been local political battles, too, Burnett said. His group first hosted an LGBTQ+-friendly Easter event in 2022 after Canyon Independent School District was pressured to remove a suicide prevention program that mentioned LGBTQ+ people.
“There is a curriculum that is being used as a teen suicide prevention curriculum that features a transgender individual and is, in our belief, therefore promoting transgenderism to high school students,” Trinity Fellowship Church Senior Pastor Jimmy Witcher said during a Sunday service in February 2022.
He added the program was supported by pop star Lady Gaga, “so that kinda tells you everything you need to know about it.”
Canyon ISD did not respond to the Tribune’s questions, but a page on the district’s website that provides information about several hot-button issues titled “Just the Facts” says that the the Board of Trustees adopted Hope Squad — a different curriculum — as the suicide prevention program.
During the 2023 school board elections, a major issue among candidates and voters was how — or whether — schools should support LGBTQ+ students. An informal hotline Burnett’s group set up from LGBTQ+ rang nonstop during that election cycle.
“We get so many phone calls at all hours of the day,” Burnett said. “We’re not a suicide hotline, but at the same time I’m not going to let somebody not call and at least have somebody to talk to.”
Waiting, undeterred
John Hintz was a 22-year-old gay man when he moved to Amarillo. He actually found support and understanding at his church, a member of what’s called the Open and Affirming Congregations of the Texas Panhandle.
Hintz said that the network’s approach to LGBTQ+ people is vital at a time when political and social rhetoric — especially toward transgender people — can be so hostile.
“Particularly when you think about young people, knowing that they have people out here, that there are people that will support them and believe them,” Hintz said.
And, Hintz notes, not everyone in the Amarillo area takes issue with transgender people or drag shows. He said many have reached out with words of support and comfort.
For young residents like Bright and Stovall, the events over the last few years have made it clear that the mere existence of queerness makes some people upset.
“They, royally, would rather have us just hide away and pretend that we’re all straight Christians in this area,” Bright said.
As of Thursday, the students were planning to reschedule the canceled show, which will require some nimble planning to secure a new, off-campus venue and find a date that works for the other drag artists.
And with a potentially highly consequential court hearing scheduled for their lawsuit on April 15, they’re back to holding their breaths.
This story was supported by the Trans Journalists Association.
Disclosure: Southern Methodist University and West Texas A&M University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/03/22/west-texas-drag-show-law-appeals/.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.
