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Annoyed and even frightened by the sex toys on display at Walmart? If you answered yes, you have something in common with Hillary Hickland, a freshman Republican House member representing Temple and Killeen.
This session, Hickland introduced House Bill 1549, a bill to ban retailers in the state from selling “obscene devices” – sex toys – unless they file paperwork to become sexually oriented businesses. If HB 1549 passes, county or district attorneys will be able to sue businesses they decide are violating the law and fine them up to $5,000.
Sexually oriented businesses, as Texas defines them, are not your Walmarts or your cute, kinky, clothing-based boutiques like Forbidden Fruit or Package Austin. They’re strip clubs and adult video stores. Cities and counties decide when the retailers cross into “sexually oriented businesses” territory. In Austin, that’s when 35% or more of a business’ sales are sex toys or products that “emphasize specified sexual activities or specified anatomical areas” (and you can guess which areas are emphasized).
In the small towns that politicians like Hickland represent, Walmart is usually the only business stocking sex toys. Yes, the big-box store does have a limited number of helpful devices on its shelves, including a vibrating dildo and “stroker” toys for men.
If HB 1549 becomes law, Texas Walmarts will presumably take down their sex toys, with little effect to their bottom line. But Mike Hendrix, a lobbyist representing the Texas Arts & Commerce Association and the Cedar Springs Merchants Association, said the bill’s passage would cripple boutiques by forcing them to follow the laws applying to sexually oriented businesses. For example, the boutiques would have to card people entering their stores to make sure they’re 18. They would have to keep a count of those who enter, because Texas requires sexually oriented businesses to pay a fee of $10 for every person who walks through their doors. And many would have to close or relocate because of zoning laws.
“You don’t want to have to register as a sexually oriented business if you can help it,” Hendrix said. “But if you and I walked into one of these small retail businesses – most of which have less than 20% of their inventory being adult novelty items – we would both agree that they should not need to register as a SOB as they are clearly a clothing store. The products that might be considered obscene to certain people are in a certain section. The rest of the inventory is clothing, sports gear, and gag gifts.”
Chris Lynch owns Package Austin, an LGBTQ fashion boutique that has sold athletic wear as well as adult toys, novelties, and leather gear for three decades. Lynch told the Chronicle that Package Austin devotes less than 18% of its floor space to the items that disturb Hickland. At the same time, he said small businesses like his run on thin margins and losing even 18% of their business would force many to close.
“This bill is not a 'me’ problem, it is an 'us’ problem,” Lynch said. “The LGBTQIA+ community will severely struggle if this bill is passed, as we will have no place in Austin to shop for our needs. But it’s not an issue for just our community. Heterosexuals will find their options severely limited to a very small handful of places in Austin which are already registered as SOBs, likely have arcade booths, and are not convenient to their homes. They are places that will be extremely uncomfortable for many women to shop alone.”
HB 1549 worries Hendrix because it’s one of the anti-LGBTQ bills that he believes will “move” this session – meaning, it may have enough support in the Legislature to go through the process of being debated in a committee and then being brought to a vote on the floors of the House and Senate. During that process, HB 1549 could change through amendments into something worse than it currently is.
“It could be a Trojan horse for a lot of really bad amendments, that restrict business and commerce as well as attempt to legislate morality,” Hendrix said. “I’m reluctant to list or go into the details of what amendments could be added, as to not give the bill author any ideas.”
Hendrix is watching to see which committees HB 1549 and other bills pertaining to civil liberties – including bills attacking transgender health care and drag performances – will be assigned to in coming weeks. “A lot of bills go to the State Affairs Committee and typically those will get a hearing,” he said. “And then it’s pretty easy to figure out at that point which ones are going to move forward and which ones aren’t, just based on staff relationships around the Capitol.”
Hendrix said these long-term relationships and the byzantine lawmaking process make it possible for groups in the minority to effectively oppose some legislation. “I’ve been doing this since I was 19,” said Hendrix, who is now 45. “So you develop a lot of relationships with staffers. And you also develop relationships with the members who, off the record, will tell you, 'This bill is going to move,’ or 'This one’s going to get a hearing.’ And then we kind of start to figure out which bills we’re going to need to battle, which ones we’re going to need to put time, resources, and activism behind to kill.
“There are Republicans in the Legislature who will work with Democrats to protect civil liberties and First Amendment rights, such as those who are very libertarian in their approach to governing. They do exist, and they are still out there, and they’re a strong group. And they will work with us behind the scenes.”
