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In a significant First Amendment ruling, the Fifth Circuit in <a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10994-CV0.pdf">Spectrum WT v. Wendler</a> held that a drag show hosted by an LGBTQ+ student organization at West Texas A&amp;M University qualifies as expressive conduct.&nbsp; The decision underscores that drag performances, like other forms of artistic and political expression, can fall within the core protections of the First Amendment.&nbsp;

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The case began when Spectrum WT, an LGBTQ+ organization at West Texas A&amp;M University, planned a charity drag show to raise funds for the Trevor Project.&nbsp; The group inquired and received approval to use an on-campus venue regularly made available to student groups and the broader community.

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Eleven days before the event, the University’s Vice President of Student Affairs notified the organization that the school’s President had cancelled the show.&nbsp; In a campus-wide email, the President stated that “West Texas A&amp;M University will not host a drag show on campus,” effectively prohibiting Spectrum WT and other groups from using university property for such performances.&nbsp; As a result, the show was moved off campus.

Spectrum WT sued the President and other university officials, seeking a preliminary injunction in the U.S. Northern District of Texas to prevent enforcement of the ban against future events.&nbsp; The District Court denied the request, finding that the plaintiffs had not shown a likelihood of success on the merits or irreparable harm.

On appeal, the Fifth Circuit reversed, framing the dispute as a First Amendment question of whether drag shows could qualify as protected expressive conduct.&nbsp; Rejecting the university’s argument that drag performances categorically are not “inherently expressive” because they may require explanation, the court emphasized that the First Amendment protects conduct so long as it conveys one or more messages, even if not every observer understands the meaning.

The Fifth Circuit found that drag performances can qualify as expressive conduct protected by the First Amendment, noting that “a drag show can communicate a message of solidarity and support for the LGBT+ community.”&nbsp; While the Court emphasized that not every instance of cross-gender attire conveys the same message, it concluded that Spectrum WT’s event was expressive.&nbsp; The President’s categorical ban on drag performances, therefore, was a content-based restriction that violated the organization’s First Amendment rights, entitling the group to a preliminary injunction.

In reaching this conclusion, the court distinguished between content-specific protected expression and restrictions that impermissibly target entire categories of speech.&nbsp; By striking down the university’s blanket prohibition, the decision reinforces that drag shows, when intended to convey a message, may fall within the First Amendment’s scope of protected expressive conduct and cannot be subject to blanket content-based bans.

The ruling also provides a framework for evaluating broader legislative efforts to regulate or prohibit drag performances. &nbsp;The Fifth Circuit’s reasoning signals that attempts to impose blanket restrictions on drag shows are unlikely to withstand First Amendment scrutiny, even where states characterize the performance as “adult entertainment.”

Fifth Circuit Holds that Drag Show is Expressive Conduct Protected Under First Amendment

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