New law could be used to block minors from viewing any LGBTQ+ content online

The same day she vetoed a statewide ban on gender-affirming care for minors, Kansas Gov. Laura Kelly (D) allowed a controversial bill that could block minors from accessing LGBTQ+ content online to become law.

On Friday, Senate Bill 394 became law without Kelly’s signature, according to a press release from the governor’s office.

Related:

Kansas’ new bill could block minors from viewing content about “homosexuality” online

One out lawmaker said that state law defines “being who we are” as harmful to minors.

Similar to laws passed in Texas, Arkansas, Indiana, Louisiana, Mississippi, Montana, Utah, and Virginia in recent years, S.B. 394 is intended to prevent minors from accessing adult websites. It would require sites featuring content that is “harmful to minors” to verify that visitors in Kansas are 18 or older. Visitors to such sites would have to provide their government-issued IDs.

Stay connected to your community

Connect with the issues and events that impact your community at home and beyond by subscribing to our newsletter.

Daily

Weekly

Good News

The bill passed the state’s House of Representatives late last month by a vote of 92–31 after unanimously passing the state Senate in February.

LGBTQ+ advocates and some Kansas Democrats have warned that the state’s legal definition of material that is “harmful to minors” means the law could be interpreted broadly to ban young people’s access to any LGBTQ+ content on the web. Under existing state law, material that is “harmful to minors” includes “sexual conduct,” which is defined in part as acts of homosexuality.

State Rep. Ken Collins, one of two Kansas Republicans who voted against the bill last month, noted that S.B. 394 “leaves subjectivity as to what this bill bans,” while out Kansas Rep. Brandon Woodard (D) went further, arguing that under state law, “being who we are” as LGBTQ+ people is defined as harmful to minors.  

State Rep. Rui Xu (D) said that Republican lawmakers had not considered the unintended consequences of the bill’s vague language and asked whether it could be used to prevent minors from a site listing the “top 10 most gay-friendly cities.”

“It’s broad and unclear what homosexuality means there,” Xu told the Kansas City Star last week. “This would have been fairly uncontroversial legislation if we were to amend these outdated laws on the books. But no mind has been given to that.”

“Because a statute defining what is harmful to minors is so subject to interpretation, I don’t think you’re ever going to find someone who can say with certainty what is allowed and what is forbidden,” Kansas Rep. John Carmichael (D) said. “You’ll find that one judge who says it’s allowed, another who says it’s forbidden and that it’s a crime, and another who would call it English literature.”

Kelly seemed to share those concerns about the bill, despite allowing it to become law.

“While well-meaning in its efforts to protect children from content the Legislature considers ‘harmful to minors,’ this bill is vague in its application and may end up infringing on constitutional rights, which is an issue being litigated in other jurisdictions over similar bills,” she said, according to the Kansas Reflector.

But given the legislature’s overwhelming support for S.B. 394, state lawmakers would almost certainly have had enough votes to override a veto from Kelly.

Some LGBTQ+ advocates, however, say the new law may not be used to censor non-explicit content.

“We need to be careful not to create more anxiety and more worry for people,” Taryn Jones, a lobbyist for Equality Kansas told the Star. “That’s always our concern when we look at bills like this – making sure we’re being upfront and honest about what the bill does but not fear-mongering to make people worry more than they already are.”

D.C Hiegert, an LGBTQ+ fellow at the American Civil Liberties Union of Kansas, noted that material covered by the new law must meet the legal requirements for obscenity. “If folks are trying to use this legislation to ban all LGBTQ content, that is very clearly not what the bill does, and that would be an unconstitutional attempt to censor access to LGBTQ content,” Hiegert said.

“I don’t believe there’s a single court in Kansas that would read this bill and the homosexuality statute that would say two men holding hands or showing affection is considered pornographic,” said Rep. Jason Probst, a Democrat who voted for the bill. “The language of the statute is narrow enough that I don’t think that’s possible.”

Max Kautsch, an attorney who specializes in First Amendment law, disagreed, according to the Star. “Because they defined sexual conduct as to include homosexuality by reference, that makes it so much more broad and sweeping and potentially dangerous than in any other age verification bills across the country,” he said. “The threat is absolutely there.”

Heigert, meanwhile, said he’s hopeful that confusion around outdated statutes like the one that includes “homosexuality” in the state’s definition of material that is “harmful to minors” will force Kansas lawmakers to update those laws. Out Kansas Rep. Brandon Woodard (D) said that there is bipartisan support for that kind of action.

“We have Republicans that are willing to clean up these state statutes and repeal these unconstitutional laws like the marriage ban,” Woodard said. “The votes are there to repeal these outdated statutes. It’s just going to take legislative leadership who is willing to do that.”