When does fashion become illegal? In late February 2026, the Fifth Circuit Court of Appeals handed down a decision clearing the path for Texas to enforce limits on public drag performances.[1] The Texas statute at issue, passed in 2023, was designed to “regulate sexually oriented performances” of drag.[2] Critics argue the statute is so vague it risks criminalizing queerness itself.[3] In regulating drag performances, Texas joins other states, including Tennessee and Montana, in attempting to control identity through fashion.[4][5]
Historic Precedent
Personal aesthetic choices are undeniably linked to self-expression. From garments to accessories to hair and cosmetic styling, the way individuals choose to present themselves is never random. These choices communicate gender expression; in the U.S., where gender identity is tied to a rigid male— female binary expressed through specific aesthetic norms, this is especially true.[6] Certain aesthetic choices signal affiliation within that binary, and throughout American history, conformity with gendered aesthetics have been heavily regulated. The first American restrictions on public gender presentation were seen in midwestern cities during the mid-nineteenth century. Cities like Saint Louis, MO, and Columbus, OH limited public cross dressing.[7] At its core, this is a regulation of dress and presentation.
During the late nineteenth and early twentieth century, cross-dressing laws remained almost entirely limited to local governments, but state anti-masquerade laws often facilitated the criminalization of gender nonconformity.[8] Local laws directly targeting gender-based aesthetic choices, combined with broader state laws limiting personal presentation, became key tools of anti-queer activism of the mid-twentieth century.[9] More recently, conservative politicians have framed drag performances as transgressive, often tying it to broader debates about gender and family dynamics in American society.[10] These laws do not just regulate performances —they regulate how bodies are styled. In 2023, Tennessee became the first state to explicitly limit drag performances .[11]
Tennessee Drag Ban Challenge
Tennessee’s drag ban arose out of a lawsuit following a Pride festival in Jackson, Tennessee, where organizers planned a drag performances in a public park.[12] Some residents objected with the performance’s location on public property, and as the lawsuit gained statewide attention, legislators took up the matter. They crafted a bill banning “adult cabaret” from public property or anywhere minors might be present, threatening drag performers with a misdemeanor charge, or a felony for repeat offenses. [13] The bill went into effect on July 1, 2023.[14] Following a lengthy appeals process, the Sixth Circuit affirmed the constitutionality of the bill in July of 2024.[15] A primary concern raised by detractors is the statute’s classification of Drag, particularly dressing in ways that does not conform with traditional gender binaries, as overtly sexual and comparable to performances that “feature topless dancers, go-go dancers, exotic dancers.”[16] Drag in Texas will not necessarily be categorized in the same way.
Update from 5th Circuit Decision
The Fifth Circuit clarified that certain drag performances will remain legal but did not assess the nature of “sexually explicit performances.”[17] Following the decision, Brian Klosterboer, senior staff attorney at the ACLU of Texas explained that the decision, though providing protections for certain types of drag performances, that the law’s “vague and sweeping provisions” will leave Queer Texans anxiously awaiting further restrictions and sets a harmful precedent restricting the performing arts.[18] In its wake, the decision suggests that personal aesthetic choices, fashion choices, which many Queer individuals rely on as a critical form of self-expression, can and will be the subject of limiting legislation. As courts continue to grapple with these statutes, one thing is clear: the regulation of drag is not just about performance—it is about policing appearance. And in doing so, the law edges closer to defining the limits of fashion itself.
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[2]Parental Rights in Public Education, to Certain Public School Requirements and Prohibitions Regarding Instruction, Diversity, Equity, and Inclusion Duties, and Social Transitioning, and to Student Clubs at Public Schools, 2025 Tex. Sess. Law Serv. Ch. 1125 (S.B. 12) (VERNON'S)
[14]Tenn. Code Ann. § 7-51-1401 (West)
[15]Friends of George's, Inc. v. Mulroy, 108 F.4th 431, 434 (6th Cir. 2024), cert. denied, 145 S. Ct. 1178, 221 L. Ed. 2d 255 (2025)
[16]Tenn. Code Ann. § 7-51-1401
[17]Woodlands Pride v. Paxton, No. 23-20480, 2026 WL 523811 (5th Cir. Feb. 25, 2026)
[18]See ACLU Texas, supra note 1.
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