In 2007, in Lubbock, Texas, a sting operation in a lingerie shop resulted in the arrest of the clerk on duty. The employee was threatened with registration as a sex offender. Why? Because the adult store’s possession of six or more “obscene devices” violated Texas Penal Code. Apparently, the sex toys gathered as evidence from the store were considered criminal enough to threaten a shop worker with 15 years of humiliation, housing restrictions, and job discrimination.
Texas’ 35 year outlaw on “obscene devices” (i.e. anything used primarily for sexual stimulation) was overturned by the state under the protection of the 14th Amendment just a year after this incident. But Texas is not unique in its long-running criminalization of sex toys. In fact, in comparison to some states’ laws on sex toys, Texas could be considered progressive. In 2007, Alabama upheld its long-running statewide ban on sex toys under the premise that “the state’s interest in preserving and promoting public morality provides a rational basis for the challenged statute.” As of June 2015, the ban remains.
How can these laws possibly exist when Lawrence v. Texas affirmed a right to private sexual conduct that sex toy bans plainly violate? Moreover, Lawrence v. Texas also upheld that substantive due process protects against the creation of “second class citizenship.” The “second class citizens” in this case are those whose sex lives are unduly restricted as a result of these bans. Certainly people in non-heteronormative relationships fall into this category as they may rely on sex toys to produce desired sensations that are otherwise unattainable. Also, since as many as 80% of women are unable to reach orgasm through vaginal stimulation, and sex toys can aid non-vaginal orgasm, sex toys women’s sexual experiences in particular. Thus, women’s sexual conduct is disproportionately impacted by these trivial bans.
These absurd restrictions also create a taboo around sex toys. As a result, people, including regulatory organizations, are uncomfortable acknowledging the prevalence of sex toys in the lives of the American public. Subsequently, regulatory organizations do not apply the level of scrutiny required of widely-used devices.
The FDA only regulates sex toys that fall under the category of “medical devices.” Unsurprisingly, manufacturers evade these hoops by naming their products “novelty items,” which do not need high levels of regulation. True, the Consumer Product Safety Committee (CPSC) performs aftermarket checks and recalls on these “novelty items.” However, since this committee is dependent on consumer reporting, and people are uncomfortable talking about sex toys, dangers generally go unaddressed.
If you hear that a material called phthalates can only compose 0.1% of children’s toys, you’d guess it’s dangerous. And you’d be correct. Yet, cheap, flexible phthalates make up 70% of the average sex toy. A material known to cause severe birth defects is readily allowed in products for internal use. What’s happening here?
Even with labels like “phthalate free” and “silicone grade,” consumers should be wary of the “novelty items” they’re using internally. The lack of FDA regulation means that manufacturers have little fear of retribution from their empty promises.
As a result of these regulation practices, there are an estimated 2,100 sex toy related ER visits a year from rash, injury, anaphylactic shock, and psychological and emotional damage (from partners blaming each other for “disease symptoms”).
The government has a responsibility to protect consumer health. That is why organizations such as the FDA exist. Considering the transparent health threat from unregulated sex toys, the government has a duty to protect sex toy consumers, who happen to make up a meager 50% of the United States.
Sex toys are over-regulated legally and under-regulated for safety. Bans on “obscene devices” are a violation of the right to private sexual conduct. They enforce the stigma against sex, which in turn leads to nonchalant regulation of devices intended for internal use.
The fact is sex (toys) sell. It’s time to accept that and protect the American consumer.
Kierstyn Smith was a NWHN Intern in Summer 2015.
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