Following this year's homophobic outcry against Pride merchandise being available at Target, seven red state attorneys general sent a letter to the department store chain alleging the sales may violate child protection and obscenity laws.
The letter to Target CEO Brian C. Cornell was sent July 5 by Indiana Attorney General Todd Rokita (R), and was joined by six others, all Republicans: Tim Griffin of Arkansas, Daniel Cameron of Kentucky, Andrew Bailey of Missouri, Raul Labrador of Idaho, Lynn Fitch of Mississippi, and Alan Wilson of South Carolina.
"As the chief legal officers of our States, we are charged with enforcing state laws protecting children and safeguarding parental rights. State child-protection laws penalize the 'sale or distribution ... of obscene matter,'" the letter states. "A matter is considered 'obscene' if 'the dominant theme of the matter ... appeals to the prurient interest in sex,' including 'material harmful to minors.'"
The letter names the specific items for sale the attorneys general took issue with.
"Target reportedly promoted and sold products in our states that included, among other products, LGBT-themed onesies, bibs and overalls; T-shirts labeled 'Girls Gays Theys;' 'Pride Adult Drag Queen Katya' (which depicts a male dressed in female 'drag'); and girls' swimsuits with 'tuck-friendly construction' and 'extra crotch coverage' for male genitalia," the letter stated.
The Katya in question, drag queen Katya Zamolodchikova, did not return a request for comment by press time.
The anti-Target campaign began in May after anti-LGBTQ media personalities drummed up a boycott against Bud Light for using TikTok personality Dylan Mulvaney, a trans woman, as a spokesperson, as the Bay Area Reporter noted at that time.
Target has sold LGBTQ-themed merchandise during Pride season for years, but after the heated rhetoric, decided to remove some of its merchandise (including the aforementioned "tuck-friendly" swimsuits). In other cases, Target moved its Pride displays from the front to the back of some stores.
This prompted the national Human Rights Campaign, along with 100 other organizations, to release a statement demanding Target reinstate the product sales.
"Recent pushback against businesses such as Anheuser-Busch and Target, blatantly organized by extremist groups, serves as a wake up call for all businesses that support the LGBTQ+ community," the statement read. "We've seen this extremist playbook of attacks before. Their goal is clear: to prevent LGBTQ+ inclusion and representation, silence our allies and make our community invisible. These attacks fuel hate against LGBTQ+ people, just as we've seen this year with more than 500 anti-LGBTQ+ bills that restrict basic freedoms and aim to erase LGBTQ+ people."
A Tennessee law regarding "adult live performances" — which critics charged was meant to restrict drag — was declared unconstitutional by a federal judge in June on First Amendment grounds, because it proscribed expression that was not legally obscene. In Florida, another federal judge issued a preliminary injunction preventing enforcement of a similar law for being unconstitutionally vague while the case awaits trial, as the B.A.R. reported.
Obscenity precedent was set forth by the U.S. Supreme Court in Miller v. California, decided by the liberal Warren court in 1971. In the Miller case, the court ruled 5-4 that obscene materials are not protected by the First Amendment, but lessened the definition of "obscene material."
For something to be obscene, and thus not covered by the First Amendment, it must appeal to the "prurient interest," that is, sexual appetites; lack "serious literary, artistic, political or scientific value;" and describe "in a patently offensive way, sexual conduct specifically defined by the applicable state law."
All three of these prongs have to be satisfied for expression to be legally obscene.
Russell K. Robinson, a professor of law at UC Berkeley, told the B.A.R. that the items contained in the AGs' letter probably don't meet the legal definition of obscenity.
"I'm very skeptical," Robinson stated. "For example, I can't imagine a court finding a bathing suit for a trans person to be obscene."
Robinson said that the letter might be motivated by personal animus.
"The attorneys general may find the items offensive to their personal sensibilities, but that is a far cry from sexually explicit material that lacks any artistic or social value (the legal test for obscenity)," he continued.
The AGs' letter also criticized Target for donating money to GLSEN, formerly the Gay, Lesbian and Straight Education Network, which did not return a request for comment for this report.
The letter concludes by saying Target "acted negligently" by alienating some conservative customers.
"It is likely more profitable to sell the type of Pride that enshrines the love of the United States," the letter stated. "Target's Pride Campaign alienates whereas Pride in our country unites. ... We live in a different day and age from our nation's founding. But certain immutable precepts and principles must always endure so long as America is to remain free and prosperous. We trust that we can work together to advance and protect the rights of individuals, the rule of law, and the well-being of families and children."
Target did not return a request for comment by press time.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
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