Florida Scores Another Victory for Children: Court Affirms Constitutionality of State’s Ban on Children Attending Sexualized Drag Shows

Florida Attorney General James Uthmeier announced that the 11th Circuit Court has affirmed the constitutionality of the state’s ban on children attending sexualized drag shows.

The Protection of Children Act, Senate Bill 1438, enacted in 2023 and signed by Gov. Ron DeSantis (R), makes it a misdemeanor to “knowingly admit a child” under 18 to an “adult live performance.”

The law defines “adult live performances” as “any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

Orlando drag eatery Hamburger Mary’s immediately challenged the law after it was passed. The establishment argued that the measure infringed upon First Amendment rights, a contention initially upheld by a federal district court, which ruled that the law likely violated constitutional protections of free speech.

The restaurant holds drag brunches and claims that the law is hurting their business. They argue that the decision on whether a performance is appropriate for an underage audience should rest with parents or guardians, not the state.

A federal district court in the Middle District of Florida granted a broad preliminary injunction blocking enforcement.

In November 2023, the U.S. Supreme Court halted the Act.

In May 2025, a divided three-judge 11th Circuit panel affirmed the injunction, finding the plaintiff likely to succeed on vagueness grounds, especially around “lewd” and the age-variable standard.

The full court later granted en banc, which vacated the panel opinion. In late 2025, the injunction stayed except as applied to Hamburger Mary’s itself, which allowed broader enforcement while the case continued.

En banc is a procedure in the U.S. federal Courts of Appeals in which a case previously decided by a three-judge panel is reheard by the full court.

In June 2026, Solicitor General Dave Dewhirst argued for the state before the full court.

On August 4, 2026, the en banc court (8-5) vacated the preliminary injunction entirely.

Judge Andrew Brasher’s majority opinion held that the plaintiff had not shown a substantial likelihood of success: the law is not unconstitutionally vague or overbroad, the Florida Supreme Court’s definition of “lewd” provides sufficient clarity, the age-variable standard does not invalidate it, and it is consistent with the state’s interest in protecting minors from material that is obscene for them and that it is not a ban on drag shows as such.

The case was remanded to the district court for further proceedings.

Uthmeier shared on X, “Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows.”

“Great work by Solicitor General Dave Dewhirst, who argued the case on the state’s behalf!”

Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows.

Great work by Solicitor General Dave Dewhirst, who argued the case on the state’s behalf! pic.twitter.com/8QqgdNbDdG

— Attorney General James Uthmeier (@AGJamesUthmeier) August 4, 2026