New bill would censor all LGBTQ+ websites for as “harmful” to minors

Can a photo of a same-sex couple holding hands be considered as harmful to minors? A Kansas bill just might.

Sold as a way to protect minors on the internet, this bill seeks to require age verification on sites where more than 25% of its content is deemed “harmful to minors.” The bill intends to limit childrens’ access to explicit adult content.

Related:

Kansas poised to become 25th state to ban gender-affirming care for minors

The state legislature is expected to override a veto by Democratic Gov. Laura Kelly.

Unfortunately, homosexuality would also fall under that umbrella; it is listed in the statute next to overtly sexual acts, and is, thus, legally considered harmful to minors.

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This statute raises questions as to whether the law can censor non-explicit LGBTQ+ content, such as books, chat rooms, and photos of same-sex couples holding hands.

State Democrat Rep. Rui Xu (D) has demanded to know if the bill could censor a site listing the “top 10 most gay-friendly cities.” He claims the bill is written vaguely, and that Republican lawmakers did not consider the unintentional and sizable consequences that the bill would put into action.

“It’s broad and unclear what homosexuality means there,” Xu said in a statement to the Kansas City Star. “This would have been fairly uncontroversial legislation if we were to amend these outdated laws on the books.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.”

His concerns are not unfounded. Efforts to censor LGBTQ+ content have dramatically increased in recent years. Nearly all books targeted for censorship in 2023 have queer content and themes.

Experts disagree on the impact the legislation could have on LGBTQ+-friendly websites. Some believe that an innocuous photo of a same-sex couple could be lawfully considered as harmful or explicit, while others claim that would be a misinterpretation of the law.

A LGBTQ+ Fellow at the American Civil Liberties Union of Kansas, attorney D.C. Hiegert, said that while homosexuality is included in the definition of sexual conduct, LGBTQ+ content must also meet 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 added.

Not all agree with his interpretation, however. A Lawrence attorney specializing in First Amendment law, Max Kautsch, believes that the law can be easily misconstrued.

“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,” said Kautsch. “The threat is absolutely there.”

This isn’t the only legislation potentially targeting online LGBTQ+ spaces. The Kids Online Safety Act (KOSA), a bill that seeks to protect minors from hostile online spaces, is also looking to keep children away from certain content — and that content could also include queer content.

“[KOSA] authorizes state attorneys general to be the ultimate arbiters of what is good or bad for kids,” digital rights organizer Sarah Philips wrote in a July 2023 Teen Vogue op-ed.  “If a state attorney asserts that information about gender-affirming care or [reproductive health]care could cause a child depression or anxiety, they could sue an app or website for not removing that content.”

All hope is not lost, however. While Hiegert does not believe the current Kansas bill to be harmful to LGBTQ+ spaces, he staunchly opposes the outdated statutes listing homosexuality next to explicit adult content.

“I hope that this type of consistent confusion and the fear that pops up in the community would be enough to kind of shake some legislators awake to think more critically about making these changes,” he said. “But I guess we’ll have to see what comes with the next session.”