Yesterday, the Executive Director of CLEAR, Spencer Watson, offered testimony to the Colorado Senate Committee on Health & Human Services in a hearing regarding SB 25-201, the “Require Age Checks for Online Sexual Materials” Bill.
This bill would place steep requirements on websites that provide material that is related to sexuality and make it widely accessible online. This measure is supposedly targeted to restrict sexually explicit content, but its overbroad definition of a “covered platform” could also be conceivably used to target websites and platforms that provide information about gender affirming care, sexual health, or other important services that should be available to people of all ages. Failure to comply would result in steep penalties for those deemed noncompliant.
Instead of helping protect kids, CO SB 25-201 hurts vulnerable communities. LGBTQ people, particularly trans and gender nonconforming people are disproportionately involved in adult content creation and sex work communities.
- In one 2014 Urban Institute study of sex workers in Atlanta, Dallas, Denver, Seattle, and Washington D.C. found that 33% of sex workers were Black, 17% were White, 11% were Latinx, and 8% were multiracial. Most identified as women (97%)—including 19% who identified as trans women.
- And, in a National Center for Transgender Equality survey of the transgender community, one in ten (11%) transgender people reported having performed sex work for income.
These are the people who will be harmed disproportionately by this bill. Not shady pimps, cartels, or human traffickers, just everyday folks trying to get by.
Moreover, the definition of what content is to be restricted is so broad it could ban any material that politicians deem improper for minors–now or in the future. The definition offered in the bill, i.e., “material harmful to children” is so vague and ill-defined that it could conceivably be used to describe a wide range of sexual and reproductive health content and content about gender affirming care, if politicians in the future so decided.
At the Hearing, Senator Lundeen offered an amendment to the bill to remove depictions of homosexual acts from Colorado’s existing statutory definition of material harmful to children, in an attempt to address the concerns of LGBTQ communities. In doing so, he also admitted to the Committee that he did not, in fact, review the statutory definition until the day of the Hearing, and was unaware of what content he was proposing to ban when he proposed the bill in the first place.
However, the problem remains that the newly proposed definition restricts depictions “in whatever form, of sexually explicit nudity, sexual conduct,…. sexual excitement” when that depiction appeals “to the prurient interest in sex,” is “patently offensive,” and the depiction lacks any “literary, artistic, political, and scientific value.”
This definition remains so vague and overbroad it could conceivably describe a wide range of LGBTQ content, including sexual health content, information about gender affirming care, and perhaps even cultural content.
What is more troubling is that significant questions remain that have yet to be answered by the bill’s sponsors and supporters about how much the proposals in the bill will cost. There will undoubtedly be costs to websites and private industry players, as well as costs to the State of Colorado for enforcement of the proposal, and lastly, costs to the State for the legal defense of the law from free speech challenges.
It remains unclear what costs will be paid, by whom, and to whom the financial benefits of this law will accumulate. It appears the only player who will be making money off of this law is the online surveillance and age verification industry, who will handle the age verification process–for a modest fee to content creators, of course.
Simply removing the statutory language banning depictions of homosexuality does little to redeem this bill’s defects, which seem to result from it being poorly researched and thought out prior to its proposal. The amendment is simply a band-aid that does not address the fundamental flaws of this bill.
The Colorado Senate Health and Human Services Committee voted 8-1 to advance this harmful bill to the Committee of the Whole to be heard in the full Senate. CLEAR will continue to oppose this unnecessary and dangerous assault on freedom of speech.
Read CLEARS’s full testimony to the Health & Human Services Committee below.
Thank you. My name is Spencer Watson. I use they/them pronouns, and I am the Executive Director of CLEAR, the Center for LGBTQ Economic Advancement & Research.[1] We are a nonprofit, nonpartisan organization that seeks to improve financial and economic equality and outcomes for LGBTQ+ people, organizations, and communities.
As someone born in Thornton, raised in Pueblo, and who graduated CU: Boulder, it is a pleasure to address this committee today. I am saddened that it had to be for this reason.
Although protecting the wellbeing of minors is admirable, SB 25-201 does not effectively accomplish that goal. Instead, it uses child welfare as a pretext to accomplish what other means of censorship otherwise could not: put adult content producers out of business.
The requirements of this bill for businesses and websites are staggering in their scope. Its implementation alone is too costly for many to comply with it, meaning they will simply cease doing any operations in the state of Colorado, or may cease operating altogether. This will absolutely disproportionately harm the businesses and content creators in LGBTQ community, who are for a variety of reasons more active in adult content creation spaces and in sex work altogether.
In one 2014 Urban Institute study of sex workers in Atlanta, Dallas, Denver, Seattle, and Washington D.C. found that 33% of sex workers were Black, 17% were White, 11% were Latinx, and 8% were multiracial. Most identified as women (97%)—including 19% who identified as trans women.[2] And, in a National Center for Transgender Equality survey of the transgender community, one in ten (11%) transgender people reported having performed sex work for income.[3] These are the people you will be harming disproportionately. Not shady pimps or human traffickers, just everyday folks trying to get by.
Moreover, the ambiguity of what type of material might be included in the definition of a covered platform is shocking. I read from the proposed bill text:
“[A] ‘[c]overed platform’ means an entity: (A) that is a website; and (B) … the entity creates, hosts, or makes available material that is harmful to children… with the objective of earning a profit.”[4]
This stunningly vague definition could, conceivably be extended to include any information that the government or regulators find to be imprudent or improper for a child to see.
As I’m sure you can appreciate in this time when information about and access to gender affirming care is being vastly curtailed in Republican states under the pretext of protecting minors, I find myself stunned to be sitting before a Democratic legislature explaining that protecting minors is no reason to limit access to any information for any reason.
Am I seriously to believe that this could not be misused to harm LGBTQ communities, when we have suffered greatly to ensure that even magazines and publications about our lives can be sent via the USPS and not be deemed Comstock Act “lewd” material?[5]
And who is to determine whether a nude image is pornography or not? Pornography has been with humanity since we could create art. Many statues, paintings, and portraits considered great art have also been accused of being pornographic and harmful to minors. Are those to be restricted under this policy as well?
Spare me the pretextual moral panic about child welfare. It is not the role of politicians to explain pornography to children. It is a parent’s job. I suggest you let parents parent and get back to more important business, like protecting your citizens from the vile attacks of this administration on your trans citizens.
Thank you for your time.
You may follow up with me at any time with any questions regarding my comments today or any other matters concerning improving the economic wellbeing of LGBTQ people, organizations, or communities.
[1] Center for LGBTQ Economic Advancement & Research, http://www.lgbtq-economics.org
[2] Meredith Dank et al., Estimating the Size and Structure of the Underground Commercial Sex Economy in Eight Major US Cities, Urban Institute 219 (March 12, 2014) https://www.urban.org/research/publication/estimating-size-and-structure-underground-commercial-sex-economy-eight-major-us-cities.
[3] Jaime M. Grant et al., Injustice at Every Turn: A report of the National Transgender Discrimination Survey, Nat’l Ctr. for Transgender Equal. 22 (2011) https://transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf.
[4] Require Age Checks for Online Sexual Materials, CO SB 25-201, 75th Gen. Assemb. § 2(b)(I)
[5] German Lopez, The homophobic history of the Post Office, Vox (May 28, 2014) https://www.vox.com/2014/5/28/5756494/the-homophobic-history-of-the-post-office.