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shu-of-the-wind · 4 months

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Okay so I have been asked to cast an eye over SB197 in the WV legislature, which is a new bill introduced to both add a new section to WV law as well as amend an existing section about child neglect and abuse, to see what potential issues I see.

TLDR: this is not only really dangerous from a standpoint of people being trans publicly, since one of the big editions is making being trans a display of obscene material and punishable by law, particularly within school grounds, but I am also seeing a lot of parental rights additions that make me REALLY SCARED of how trans kids are going to be treated in WV. I’m going to go thru it section by section and break down why each section frightens me, so hopefully this is educational for folks.

My creds: I worked in family law as an attorney for three years, I was affiliated with a public defenders office for that same amount of time working primarily with juvenile offenders, and I am still an attorney even if I haven’t worked in those fields for the last six months. Plus I’m trans. And I love WV and wanted to live there. So.

WEST VIRGINIA'S FUN NEW SHITSHOW HORROR HOUSE TIME.

The new section (formally titled §18-5-29, Obscene matter in public schools prohibited [I will be calling it the Obscenity section]) is about 700 words of absolute garbage. Essentially what it distills down to is the following.

Section A: prohibiting anything they label as “obscene matter” in or within 2500 feet of any public school library, classroom, building, or other facility under the supervision of the state board of education and requiring that any school officials or personnel who become aware of the material remove it from school grounds. “Obscene matter” is currently defined in §61-8A-1 of the WV code, pretty fuckin broadly (unconstitutionally so in my opinion but ~that’s me~). So basically anything an “average person applying contemporary community standards would find taken as a whole appeals to the prurient interest or is pandered to a prurient interest” (basically, anything ~unwholesome~), anything that an “average person applying community standards” would find depicts sexually explicit conduct in a “patently offensive way,” or anything that a reasonable person would find “taken as a whole, lacks serious literary, artistic, scientific or political value” which basically means E V E R Y THING.

Section B. This is the one that scares the shit out of me tbqh, cause this is folding in the amendment section I mentioned earlier to another part of the WV code specifically relating to child abuse and neglect. This section mandates that any “school officials or school personnel while engaged in a professional capacity or activity” shall be found to be a “custodian of children” under WV law. This basically makes EVERYONE a mandatory reporter, which like…most professionals already are, but at the same time this is EXPLICITLY MAKING ANYONE WHO WORKS IN THE SCHOOL IN ANY CAPACITY (see: any school officials or school personnel) mandatory reporters regarding “obscene matter.” So if an adult working at the school even SUSPECTS that a child has been exposed to “obscene material “while in any public school facility (unclear from the phrasing if the exposure happened on school property, or if the professional just learns about it there) and they decide not to report it (or they “fail to make a TIMELY report” when there’s no real definition of what timely means) then they can be prosecuted for a misdemeanor and imprisoned.

Section C. The state superintendent is going to establish a procedure to file complaints alleging violations of subsection A. If they find that a violation occurred, they will TELL THE COPS THAT IT HAPPENED.

Section D. No government funds (state or federal) can be used to develop or operate programs “designed to promote or encourage sexual activity, whether homosexual or heterosexual” or “to distribute or aid in distribution of any legally obscene materials” within 2500 feet of a school building or facility. Which, woof. We could unpack everything about that one, but it’ll be most of the review.

Section E. If an adult is found to have committed a felony under the child neglect statute related back to this one (if they’re found to have neglected kids by allowing them to view or possess “obscene material” is my understanding, this bill isn’t written that well) then they will be subject to penalties set forth in a felony, which I’m guessing (on average) is at least a year in jail and a thousand dollar fine, from what I’ve seen of WV felony statutes.

Section F. THIS IS THE OTHER REALLY SCARY ONE TO ME FROM A LEGAL STANDPOINT. “Any student or parent, guardian, or custodian on behalf of a student shall have civil cause of action against a county board, public charter school, state board” if the entity caused or was negligent in allowing a violation of the preceding sections, basically if they let anything slide PARENTS CAN SUE THE SCHOOL which like…if you’re talkin about a trans kid who is not out to their parents, they’re found to have “obscene material” (fanfiction?? Fanfiction could qualify here??? Risque art that isn’t even definitionally pornography?? A book abut transitioning that they’re hiding from their parents???) the school is mandated to not only out this kid to their parents, but the parents can then sue the school if the school DOESN’T OUT THE CHILD. Just spinning a hypothetical here but I hate this.

The rest of the bill is adding in definitions to Article 8A of the WV code, which are as follows. Anything italicized is the new language that has been proposed to be added by the bill; anything NOT italicized was already in the law:

(g) "Graphic," when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.

(h) "Identifiable minor" means a person: (i) who was a minor at the time the visual depiction was created, adapted, or modified; or (ii) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and (iii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor.

(i) "Indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct.

(i)(l) "Matter" means any visual, audio, or physical item, article, production transmission, publication, display, exposure, exhibition, or live performance, or reproduction thereof, including any two- or three- dimensional visual or written material, stereopticon, moving picture, slide, film, picture, drawing, not exceeding $500 video, graphic, graphic novel, or computer generated or reproduced image; or any book, not exceeding $500 magazine, newspaper or other visual or written material; or any motion picture or other pictorial representation; or any statue or other figure; or any recording, transcription, or mechanical, chemical, or electrical reproduction; or any other articles, video laser disc, computer hardware and software, or computer generated images or message recording, transcription, or object, or any public or commercial live exhibition performed for consideration or before an audience of one or more.

(j)(m) "Minor" means a an person under eighteen years of age or a person representing himself or herself to be a minor. Any prosecution under this article relating to a victim who is representing himself or herself to be a minor shall be limited to investigations being conducted or overseen by law enforcement.

And the big doozy here is this one:

(k)(n) "Obscene matter" means matter that:

(1) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest;

(2) An average person, applying community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct; and

(3) A reasonable person would find, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(4) For the purposes of any prohibition, protection, or requirement under any and all articles and sections of the Code of West Virginia protecting children from exposure to indecent displays of a sexually explicit nature, such prohibited displays shall include, but not be limited to, any transvestite and/or transgender exposure, performances or display to any minor.

(l)(o) "Parent" includes a biological or adoptive parent, legal guardian, or legal custodian. (underlining this one for the legal side note that remember that custodian language from before??? that's where this kicks in)

(m)(p) "Person" means any adult, partnership, firm, association, corporation, or other legal entity.

(n)(q) "Sexually explicit conduct" means a ultimate definitive sexual act, normal or perverted, between persons of the same or opposite sex, actual or simulated, including genital-genital, oral-genital, anal-genital, or oral-anal sexual intercourse, sodomy, oral copulation of any kind, sexual bestiality, sexual sadism and masochism, masturbation, excretory functions and lewd exhibition of the anus, genitals or pubic area of any person, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited.

okay. well.

I mean. This is all just gonna be an absolute garbage hellscape if this gets passed. THE IMPORTANT THING IS IT HAS NOT BEEN PASSED. If you live in WV, you can call folks and say that you are AGAINST the passage of SB197. Call your state or county representatives! They are the people who vote on this! If your representative is on the Judiciary Committee, so much the better, that’s where the bill is being evaluated right now!!! Here is the list of delegates on the committee! Call them!! Make a point to be upset!!! Explain why you don’t want this bill to pass!!! Keep an eye on the Committee website for the dates that the public hearings will be held on this bill, because there likely will be a public hearing people can speak at!! You CAN actually do something, it’s not the end of the world.

Even if you do not live in WV and you live NEAR WV, then 100% reach out to folks you know who live there and give them a safe space to land if they need to get out of the state!!! There are things you can do. Just….a heads up to everyone that this is on the table and it’s something they’re going to be discussing.

#transphobia #queerphobia #west virginia #us politics #political and legal analysis #legal analysis #alix is a lawyer #i hate this #i love west virginia as a state and i hate this as a trans person and an attorney and a child welfare advocate #every bone in my body is full of bees looking at this

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