Proposed Ohio indecency law draws free speech, clothing concerns

By Christina Lengyel
The Center Square

A controversial bill Ohio Republican lawmakers say is aimed at protecting children is rankling free speech and LGBT advocates as it awaits consideration in the Senate.

Its authors say the “Indecent Exposure Modernization Act,” which passed the House 63-32, is a commonsense update to existing obscenity laws.

“Ohio has clear gaps in its indecent exposure and obscenity laws,” said Rep. Josh Williams, R-Sylvania Township, one of the bill’s sponsors. “The legislature has said time and time again that kids should not be exposed to obscene material. Now we are taking the step to ensure that the same type of obscene performances that they cannot watch online, they can’t watch in person.”

Others contend it addresses a problem that doesn’t exist, with obscenity laws already on the books to protect children.

“This bill does nothing to address the over 500,000 children in this state who are food insecure,” said Minority Whip Rep. Beryl Piccalantonio, D-Gahanna. “While we are not addressing those issues, I am embarrassed to say we are spending any time at all on a culture war bill that doesn’t make our communities safer but does have the potential to cost taxpayer dollars, to threaten economic activity, and to frighten into hiding some of our already vulnerable community members.”

The new law would limit shows that could be “harmful to juveniles or obscene” to “adult cabarets.”

The legislation goes on to name shows including “performers or entertainers who exhibit a gender identity that is different from the performer’s or entertainer’s biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers.”

Co-sponsor Rep. Angie King, R-Celina, said, “This bill closes loopholes in our law, strengthens protections for minors, and ensures that private spaces remain just that – private.”

Opponents say the bill bans drag shows and poses criminal threats for transgender Ohioans. They’ve asked who determines whether something meets the standards of harm or obscenity and how they would do so.

The Ohio ACLU testified against the law, warning against the “chilling effect” obscenity laws have on free speech.

“Those of us concerned about the First Amendment implications of HB 249 know these types of laws have been purposely used to target unpopular speech and art for many decades,” said the organization. “Indeed, over the years, movies, TV shows, books, comic books, video games, websites, and more have been subjected to these fuzzy restrictions.”

Police would be responsible for interpreting the law on a case-by-case basis as they encounter potential violations.

“Regardless of how activist adult entertainers and the media chooses to spin House Bill 249, this legislation does not ban strip clubs or drag shows, and it certainly doesn’t ban live performances such as Mrs. Doubtfire or Tootsie,” King said.

King referred to an incident in which a transgender woman changing in a gym locker room in Xenia was found not guilty of public indecency charges. The judge ruled on the basis of the transgender woman’s body weight, which obscured male genitalia from view.

The YMCA where the incident occurred allows people to use locker rooms according to their gender identity.

HB 249 would change the language of the law to cover “private areas,” not just “private parts,” ensuring that a similar defense could not be used in the future. The law also creates protections for women to breastfeed in public.

Still, some worry that the restrictions can easily spill into other types of dress, like sports bras and athletic wear.

“This bill takes regular, everyday activities and turns them into potential crimes, based on whether somebody else might be offended by what other people are wearing,” said Dwayne Steward, executive director and CEO of Equality Ohio and Equality Ohio Education Fund, in a statement. “This bill gives government the unacceptable power to police what people wear.”