Sex Act Campaign, March, 2007

As the sex toy industry grows, so does its opposition. Zoning laws forbidding sex toy sales near churches, residences or schools are commonplace in communities large and small.  Bans on sex toy use have not been attempted but bans on sales are going strong. Each of these bans has its own unique and sometimes bizarre story. For everything you ever wanted to know about sex toy bans, read on. 

State Bans

All sex toy bans happen at the state level. When they are challenged, it’s usually based on the right to privacy. This doesn’t always work as sex toy sales are a sales transaction even though they are used privately. Louisiana, Colorado and Kansas have ruled that sex toy bans are unconstitutional. In other states (all in the south), the bans are on the books or have been proposed.

Alabama

The most recent case to get coverage in the news has been that of Alabama. This ban against sex toy sales has had a long and bizarre history. The case was originally ruled unconstitutional but was appealed and sent to the circuit court. This court sent it back to the district court which again ruled that the law was unconstitutional. The supporters of the ban appealed again and it went back to a panel the same circuit court who ruled for the supporters of the ban. Those against the ban tried to get the case heard by the entire court instead of just the panel and were denied. They appealed the case to the Supreme Court who declined to hear the case and remanded it all the way back down to the original court who this time decided to rule for the ban where it had already twice ruled against it. The appeal brought the case back to the circuit court who on Valentine’s Day of this year upheld the ruling citing public morality as a cause for banning sex toy sales.

Phew! I’m exhausted.  This ruling is heinous for a few reasons. Of course the first is that it prohibits people from buying things to use in the privacy of their own homes. The second is that the law likens sex toy sales to prostitution – a comparison clearly used to play off of the stigma of sex work. Third, at one point during the case, the ban was upheld because it was seen not to affect a majority population because only people who practice a homosexual lifestyle use sex toys. Not only is this again an example of using another stigma to cloud people’s opinions on sex toys, it’s patently false.

Source: http://www.law.com/jsp/article.jsp?id=1090180191546

 
Texas

This is by far my favorite sex toy ban (if one can have a favorite). In Texas, it is illegal to own six or more dildos. If you have six or more, you are a felon because they assume you have intent to distribute. If you have five or less, you are merely a “hobbyist”.

To get even more screwed up, you can only sell a “realistic representation” dildo as an “educational model” – and that’s the language you have to use. If you want to buy a vibrator you have to call it a “personal massager”. So, you can sell things that look like penises as long as they don’t vibrate and you can sell things that vibrate as long as they don’t look like penises. If you buy one of these toys you have to sign a release form that says that you will use it for educational or artistic purposes. (Aren’t all orgasms art, really?)

The best part of this? Butt toys you can talk about however you want because the anus is not defined as a sexual orifice by Texas law. (Unless of course, it’s a penis in which case it was sodomy until Lawrence v Texas ruled that unconstitutional.)

Lastly, the thing that is actually the craziest about the Texas law (you didn’t think it could get any crazier, did you?) is that selling sex toys incorrectly is in the Texas Penal Code under Organized Crime. Yes, you read that correctly. Selling sex toys makes you part of the mafia:

Texas Penal Code § 71.02(a) (on "Organized Crime") : "A person commits
an offense if, with the intent to establish, maintain, or participate
in a combination ... or as a member of a criminal street gang, he
commits or conspires to commit one or more of the following: ... (6)
any unlawful wholesale promotion or possession of any obscene material
or obscene device with the intent to wholesale promote the same."

Sources:

An amazing video on Texas legislation with the late Molly Ivins: http://www.alternet.org/blogs/video/42585/

Texas Penal Code
http://www.msnbc.msn.com/id/15104529/

Mississippi

The last state with a major sex toy ban is Mississippi. It’s not nearly as interesting as Alabama and Texas but sex toys have been banned on the same grounds as every other state that has attempted it.

Hinds County Chancellor Bill Singletary ruled in 2003 that state law does not extend the right to privacy to the commercial sale of sexual devices. He said state government had an interest in "protecting public physical and mental health and supporting public morality." Presiding Justice Bill Waller Jr., writing yesterday for the court, said ... there was no fundamental right of access to buy sexual devices. He said while a federal court found a similar Alabama law was unconstitutional, other courts — including ones in Georgia, Louisiana and Texas — have rejected attempts to expand the right to privacy to include the commercial sale of sex toys.

Source: http://atheism.about.com/b/a/074475.htm

Attempted Bans

There are two states that have introduced legislation to ban sex toys but neither of them have made it through the system and become law.

Tennessee

Senate Bill 3794 (House Bill 3798) legislation would make it illegal to sell, advertise, publish or exhibit to another person “any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs.” This means that porn is ok but sex toys are not. Could we make two-dimensional devices to stimulate sexual organs?

South Carolina

Representative Davenport introduced bill H-4830 into the legislature last session but the bill didn’t go anywhere. Babeland blogged about this legislation not only because it was heinous, but because the author of the bill didn’t even know what a sex toy was!  That’s blind government for you.

Source: http://blog.babeland.com/2006/04/27/south-carolina-bill-introduced-to-ban-sex-toys/
 

Now you know just about everything there is about sex toy bans – go forth an impress people at cocktail parties. Or, better yet, fight to make sure that this kind of legislation cannot move forward in your state. Everyone should have the right to go down to their local sex toy store and find the perfect vibrator or dildo for them. And they should be able to own as many as they want. If you live in Alabama or Texas or Mississippi – give Babeland a try. Between the helpful advice and the large selection of “personal massagers”, we’ve got your sex toy needs covered.