These two new West Virginia bills are trying to make it a crime to be ‘exposed’ to trans people

Two new bills were introduced in West Virginia last week, criminalizing drag performances and trans people, labeling them “obscene.”

SB252 would ban “obscene materials” within 2,500 feet of West Virginia schools and SB278 would keep minors from being exposed to sexually explicit displays at drag shows, which the bill frames as “transvestite and/or transgender exposure in performances”.

Per the penalties of school-related bill SB252, a charge would include a misdemeanor along with a fine of up to $500 and/or up to one year in prison. The venue regulation bill SB278 penalties include a misdemeanor, up to $1,000 in fine and/or up to six months of jail time for performers of ‘indecency’, while the person in charge of venues with “obscene matter” could be fined up to $500. In addition, should minors be present for performances deemed as obscene or prurient, the venue would face a public nuisance complaint.

While one bill focuses on schools and the other focuses on drag performances, the common throughline for both bills is the definition of what is considered “obscene matter.” In both documents, the last definition for “obscene matter” is described as “indecent displays of a sexually explicit nature,” such as “transvestite” and “trans exposure.” This added definition is an amendment of 61-8A-1, the West Virginia Code for what the state depicts as obscene towards minors. While specific, there is no further explanation for what “transvestite and/or transgender exposure” entails.

“Would transgender parents be able to take their children to school or participate in school functions without being slapped with “transgender exposure”?” said Ash Orr, a trans and reproductive justice organizer based in West Virginia.

“I am a transgender uncle to four amazing children. I both pick up and drop off these children to school, work, and their homes,” said Orr. “They and their parents are my part of my chosen family; we are all actively intertwined in each other’s lives. Would this law lead to me and other trans West Virginians being deemed as “transgender exposure to minors” for just existing?”

Last year, a record-breaking number of 314 anti-LGBTQ legislation was introduced, according to the Human Rights Campaign, while over 100 have already been introduced this year alone. These instances are “all related in terms of their political motivation and trying to stigmatize a vulnerable community—and particularly to stigmatize LGBTQ+ youth,” Rachel Levine, U.S. assistant secretary for health told NPR last year.

The ACLU of Mississippi released a statement on Jan. 19 in response to HB1125 Regulate Experimental Adolescent Procedures (REAP) Act, another anti-trans bill that attempts to criminalize parents and healthcare providers for supporting trans youth of Mississippi. The statement noted how dangerous the bill could be for the wellbeing of trans youth, as they are already vulnerable.

“Research shows transgender youth are twice as likely than their cisgender peers to experience depression, isolation, and attempt suicide. Additionally, transgender youth whose families support their gender identity have a decrease in suicidal thoughts and significant increases in self-esteem,” they said in the statement.

With the West Virginia bills, making it a crime to be “exposed” to trans people could further isolate young trans people’s perceptions.

“The fact that trans kids and trans bodies are being talked about almost constantly on the news and in legislative session by people who are not trans has definitely led to a lot of people [in West Virginia] feeling unsafe, hurt, and hyper visible,” said Rae Garringer, West Virginia resident and founder of Country Queers, a multimedia oral history project documenting the diverse experiences of rural, small town, and country LGBTQIA2S+ folks.

“Trans people are not dangerous to children, and the return of this narrative about trans and queer people being predators is really depressing and really damaging,” Garringer said. “This bill raises a lot of questions and concerns for me about what ‘exposure’ means, and about how ‘transvestite/transgender exposure’ would be reported and by who. It raises some serious concerns about how this bill would be enforced.”

The vague definition of what “transgender exposure” is harkens back to the mid-20th century three-article rule. The three-article rule meant a person needed to wear at least three articles of clothing that aligned with their legal gender marker.

According to History.com, the three-article rule was retrospective, and therefore mentioned “in interviews and memoirs about the 1940s, ‘50s, and ‘60s, but not in documents actually produced in those years.” In addition, none of the laws pertaining to cross-dressing mentioned a specific number of clothing articles. It was eventually concluded by Kate Redburn that “either the three-article law was an informal rule of thumb used by the police, or, essentially, a term used by the LGBTQ community as a way to easily warn each other.”

In the mid 20th century, said one of the researchers Christopher Adam Mitchell, the police and LGBTQ communities around the country became more intertwined, which made it easier for the vague rule to be talked about amongst the streets, which explains why it gets referenced everywhere by people who lived through it.

Mitchell also noted that rather that the gay men and transgender women who were only arrested in bar raids due to the three-article rule, lesbians and trans men were accosted on the streets in addition police confrontation during bar raids.

“Police were using [the three-article rule] to check their underwear,” Mitchell said. Ultimately, the three-article rule was utilized as an excuse for street-level sexual assault and sexual humiliation.

Therefore, given the history of an obsolete policy, regarding public image and presumed notions of gender expressions, and its loosely followed execution, how would trans and gender nonconforming citizens of West Virginia trust the police to follow protocol without misconduct or misinterpretation of the law should SB252 and SB278 pass?

“[The new bills] line up very well with previous legislations and comments made by members of our legislature—even our governor,” said Rosemary Ketchum, a Councilwoman in West Virginia. “It’s clear that [West Virginia’s] entire legislator is unaware—maybe willfully—that trans people make up a really significant part of our culture here.”

“Our calculation in 2017 [according to a] Williams Institute study found that West Virginia had the highest per capita rate of trans people in the nation,” Ketchum said. “I wish [I could say] that these legislators [in West Virginia] don’t represent us, but unfortunately, in fact, they very much represent us because they were elected in their states.”

Genevieve Bergman, one of the hosts of Transistance, a weekly commentary show covering worldwide trans news and events, called the West Virginia bills “a complete dehumanization of transgender people to nothing other than obscene material.”

“What [co-host Emily Kleckner and I are] worried about is what ‘exposure’ or ‘display’ mean because of the words that are defined, those two words are not defined, nor is it set out what those words mean,” Bergman said during a livestream on Jan. 23. “This is an effort to illegalize, to criminalize, to make a transgender person less than a human but obscene material which can be banned, thrown away and discarded.”

The effort, according to Bergman is a “huge step in genocide” against trans and gender nonconforming people. Given the surge in anti-LGBTQ legislations introduced this year alone, the steady shift to further outlaw and police LGBTQ people is particularly poignant for trans communities—especially trans youth.

For Councilwoman Ketchum, “West Virginia has all the tools at its disposal to [become better], we just don’t have [enough] courageous leadership yet to make it a reality.”

To learn more about how you can support LGBTQ rights in West Virginia and in general, Ketchum recommends starting locally. “If your community doesn’t have one, consider starting one.”

In West Virginia, “organizations like Fairness West Virginia, ACLU WV, and Dr. Rainbow are also great resources for people who [want to] get involved,” Ketchum said. “Lastly, I encourage folks to create positive social media content about LGBTQ people in West Virginia to counterbalance the negative press.”