BURSTA federal appeals court on Monday blocked West Texas A&M University from banning student drag performances on its campus, overruling a lower court order that claimed First Amendment protections do not extend to drag shows.
The 2-1 decision from the 5th U.S. Circuit Court of Appeals asserts the university acted unconstitutionally when it canceled student-organized charity drag performances in 2023 and 2024. In a March 2023 email to students, faculty and staff titled, “A Harmless Drag Show? No Such Thing,” University President Walter Wendler said drag discriminates against women and compared it to blackface.
“West Texas A&M University will not host a drag show on campus,” Wendler wrote in the email, which also referenced his Christian religious beliefs. The school, part of the Texas A&M University System, is public and not religiously affiliated.
“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,” Wendler wrote. He added that students should donate directly to the Trevor Project, the LGBTQ youth suicide prevention organization that was to be the drag show’s beneficiary.
The Foundation for Individual Rights and Expression (FIRE) sued Wendler and West Texas A&M in 2023 on behalf of Spectrum WT, the LGBTQ student group behind the drag show, “A Fool’s Drag Race,” that Wendler canceled. He canceled another of the group’s drag performances in 2024, citing his 2023 email and a new Texas law restricting “sexually oriented performances.”
A district court judge denied FIRE and Spectrum WT’s motion for a preliminary injunction in 2023. In 2024, the Supreme Court declined to intervene in the case following a request for emergency action by the student group.
In Thursday’s 5th Circuit ruling, Judge Leslie H. Southwick, an appointee of former President George W. Bush, wrote that theatrical performances, including drag shows, “plainly involve expressive conduct within the protection of the First Amendment.”
“President Wendler did not argue, either before the district court or on appeal, that restricting the intended drag show would survive strict scrutiny,” Southwick wrote on Monday. “Based on the record before us, the district court erred in concluding that the plaintiffs were not substantially likely to succeed on the merits of their First Amendment claim.”
Adam Steinbaugh, an attorney for the plaintiffs at FIRE, said in a statement that the organization is “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.”
“This is a victory not just for Spectrum WT, but for any public university students at risk of being silenced by campus censors,” said JT Morris, FIRE’s senior supervising attorney.
A spokesperson for West Texas A&M University did not immediately return a request for comment.
The ruling comes several months after a federal judge handed a victory to another student-led LGBTQ group that sued the Texas A&M University System and its flagship earlier this year over a policy banning drag performances on each of its 11 campuses.
The university system’s Board of Regents voted almost unanimously in February to adopt a resolution that states drag events are inconsistent with the system’s “mission and core values, including the value of respect for others.” The resolution cites an executive order from President Trump that proclaims the U.S. recognizes only two unchangeable sexes, male and female, and aims to prevent federal spending on “gender ideology.”