Originally published by The 19th.
When the Kids Online Safety Act (KOSA) was introduced in Congress two years ago, it set off alarm bells for many LGBTQ+ groups. The broad and vague bill that aimed to “protect children online” seemed like a censorship nightmare, empowering state attorneys general to determine what kind of content harms kids.
The fears that KOSA would be used to shut down LGBTQ+ content were not unfounded. In September 2022, conservative think tank the Heritage Foundation appeared to endorse the bill in an editorial claiming big tech turns children trans. (It doesn’t.) A few months later they openly stated their intentions to use bills like KOSA to restrict transgender content online.
One of KOSA’s authors, Sen. Marsha Blackburn, a Tennessee Republican, told an interviewer that the top things conservatives should be taking action on are “protecting minor children from the transgender in this culture” and social media, warning that the internet is where children are “indoctrinated.” She promoted KOSA in her answer too, leading many to think she would try to use the bill to censor transgender content online. Her office later clarified that the two statements were separate.
The legislation has been extensively revised since then. Many changes came after over 100 organizations, including at least 31 LGBTQ+ groups, signed an open letter to the Senate Committee on Commerce, Science and Transportation opposing the bill because of privacy and censorship concerns.
Each iteration has picked up new co-sponsors, but the newest version of the bill shared by Sen. Richard Blumenthal, a Connecticut Democrat, and Blackburn last month now has the support of over 60 senators, the level needed to pass.
That version of the bill was accompanied by a letter from major national LGBTQ+ groups — including the Human Rights Campaign, GLAAD, The Trevor Project and PFLAG — withdrawing their opposition. But over 20 LGBTQ+ advocacy groups, many in states whose legislatures are working to restrict queer people from public life and education, maintain their opposition to the bill. The American Civil Liberties Union also still opposes KOSA.
“As someone who works in state policy and sees the bills moving in statehouses along with bills moving at the national level, the number of bills we’ve seen in Oklahoma that would sort of create further restrictions and opportunities for censorship if something like KOSA passes at the federal level is what concerns me most,” said Nicole McAfee, executive director of Freedom Oklahoma, an advocacy group centered on the rights of LGBTQ+ people in the state.
KOSA creates a “duty of care” for kids 16 and under that requires tech companies to prevent and mitigate a list of potential harms on platforms like social media, online gaming or video streaming sites. The harms include specific mental health issues; patterns that encourage compulsory use; sexual exploitation or abuse; violence or bullying; the promotion of narcotics, alcohol, gambling or tobacco; and predatory marketing tactics.
The most significant changes since its introduction have clarified and narrowed the scope of regulation to apply to “design features” such as notifications and in-game purchases. Previous versions used language broad enough that it could be interpreted to apply to any content hosted on platforms, meaning tech companies would have an additional legal obligation to moderate material like posts or comments that could be linked to mental health conditions like depression and eating disorders.
The list of harms companies would be obligated to mitigate also changed. Earlier versions told tech companies they needed to reduce the potential of any mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders — which would have threatened information about gender dysphoria, said Caius Willingham, senior policy advocate at the National Center for Transgender Equality (NCTE). A diagnosis of gender dysphoria often facilitates access to necessary gender-related care for trans people.
NCTE joined an open letter opposing the bill in 2022, but withdrew its opposition in 2023. The organization is one of several major national LGBTQ+ groups that publicly stated they no longer oppose the February 2024 version of the bill.
The original 2022 version of KOSA also restricted the promotion and marketing of “illegal drugs,” which LGBTQ+ groups pointed out could have applied to medical treatments like hormone replacement therapy or puberty blockers that are now encompassed in bans on gender-affirming care for minors in 24 states. The current version uses the word “narcotics” instead.
The bill has also been edited to take out any mentions of grooming, which was originally included because it’s been used in prior anti-trafficking laws, but now is more likely to be used as a homophobic attack.
The possibility of content regulation was especially concerning because KOSA gives enforcement authority to both the Federal Trade Commission and individual state attorneys general, potentially giving states hostile to the existence of LGBTQ+ people another tool to undermine their participation in public life.
Now, state attorneys general can bring action only against companies that violate mandates for safeguards or transparency, not the duty of care provision. This closes off the largest loophole for trying to ban LGBTQ+ content.
KOSA applies to design features like personalized recommendation systems — the technology that social media companies use to suggest content to users.
In some cases this makes sense — an investigation from the Wall Street Journal last year showed how Instagram hashtags and recommended accounts easily connected users to a network of child predators. But there are less clear-cut issues.
“You could argue that having information about gun violence, or having information about climate change, could make you anxious or depressed. But does that mean that young people shouldn’t have access to those things?” asks Sarah Philips, a campaigner at the nonprofit Fight for the Future, which works to protect online privacy and freedom of expression. This isn’t just a hypothetical, as climate change is a cause of anxiety in young people.
“What we believe is that right-wing politicians can still use that basis to argue that social media companies shouldn’t be — quote, unquote — pushing or platforming or hosting information that could get in front of kids that does encourage that list of problems,” said Philips. “And that obviously loops in gender-affirming health care, abortion content, all these things that politicians are fighting against.”
Banning posts about climate change or school shootings may seem like a stretch, but for many LGBTQ+ groups in red states, this logic reflects the bills they are fighting in statehouses every day.
”There is that threat of censorship. And that is a threat that I think can be weaponized, particularly on the ground in states like Oklahoma where we have already seen overwhelming support for censorship of queer and trans representation in spaces, including online,” McAfee said.
“Something with less teeth can still hurt you a lot, and can still do a ton of damage. It’s not the same thing as it not being there,” said Dara Adkison, the board secretary at TransOhio.
Both Adkison and McAfee pointed to similar bills in their statehouses that involve restricting access to content online — often under the guise of “protecting youth.”
“We can’t trust that if passed this censorship bill will do zero harm. And it might not do harm immediately, but rather lay a foundation for harm in the near future via FTC [Federal Trade Commission] enforcement,” Adkison wrote by email.
There’s a concern that passing KOSA at the federal level will set the tone for what can come after, said Kelsey Grunstra, the director of development, communications and policy at the Massachusetts Transgender Political Coalition.
“We don’t really know the full threats that could come out of this because the bill is worded so vaguely that it could be interpreted in very different ways by different presidential administrations, different political majorities in either house of the federal government,” Grunstra said. “It also is just going to set into effect a chilling effect for any type of free speech in state level government.”
Some advocates want legislators to make some specific changes to KOSA as it makes its way through Congress. Philips said explicitly stating the bill is content neutral, a legal term referring to laws that regulate all expression regardless of specific message, would be a huge improvement, as the Library of Congress notes that it can be difficult for courts to determine whether a law is content-based. Willingham, at NCTE, said the organization would welcome an explicit backstop saying the bill does not apply to LGBTQ+ content.
Any effort to use KOSA to take down content should be quickly dismissed by a court under Section 230, a federal law that says internet companies cannot be held liable for the content published on their platforms. While the Supreme Court declined to revise Section 230 last year, limiting the law remains a frequent talking point among politicians.
The political headwinds make many LGBTQ+ groups unwilling to compromise on any bill that has only mitigated risk instead of eliminated it outright.
“There is no reason to regulate content that does not need to be regulated, and allowing an inch on something that is false is just a continuation of our slippery slope into authoritarianism right now,” Adkison said.
Critics of KOSA have a recent example to point to: FOSTA-SESTA is a law passed in 2018 that made it illegal to facilitate sex trafficking online and removed Section 230 immunity for related crimes. It caused a domino effect. Social media and tech companies overcorrected, banning any content deemed sexual for fear it could be linked to trafficking.
That included mass crackdowns of information about sex education, Philips said. “A lot of sex workers were de-platformed, a lot of information was taken down, and it mostly impacted Black and brown queer creators.”
“The real threat here is not what the law says. The real threat is how social media companies will act,” Philips emphasized.
McAfee said a worst-case scenario if KOSA passes would be over-compliance resulting in a lack of available information for queer and trans youth. “The ability to not find queer and trans representation on the internet for young people who already feel isolated worries me a lot, just in terms of impacts to mental health,” they said.
Every LGBTQ+ organization The 19th spoke with that opposed KOSA voiced similar concerns: that queer and trans youth would be cut off from online resources.
Online resources are integral in states like New Mexico that are largely rural, said Marshall Martinez, executive director at Equality New Mexico. His organization remains opposed to KOSA, and he can’t think of a change that would make them support a bill that is “rooted in censorship.”
Democrats are in power in New Mexico now, but Martinez worries that if other states start to criminalize LGBTQ+ content, “internet companies aren’t going to make something available in New Mexico and not in Texas.”
Bipartisan support alarmed Nicole L., who is only going by her first name and last initial due to concerns about harassment. She is a parent of a nonbinary teen living in a Maryland suburb. When her kid came out as nonbinary, Nicole turned to the internet to learn more about how to support her child. When she heard about the potential issues with KOSA and saw a petition signed by parents of trans and gender-expansive children circulating on BlueSky, she signed on.
While the legislation is unlikely to affect her family in Maryland, she is concerned for queer youth with less support or in more hostile states. “I just would never support a Republican-drafted internet bill,” Nicole said. “There are a lot of problems with the internet, but I don’t think that other people see the same things that I see as problems.”
Eighteen LGBTQ+ groups that opposed KOSA in 2022 are no longer listed on the current letter of opposition. Seven, all national organizations, published a letter to Blumenthal saying they would no longer oppose the bill on the same day he unveiled a new version with over 60 co-sponsors.
“The considerable changes that you have proposed to KOSA in the draft released on February 15, 2024, significantly mitigate the risk of it being misused to suppress LGBTQ+ resources or stifle young people’s access to online communities. As such, if this draft of the bill moves forward, our organizations will not oppose its passage,” the joint letter reads.
Notably, they didn’t go as far as expressing support.
Jorge Reyes Salinas is the communications director for Equality California and Silver State Equality. He spoke on behalf of both organizations, which no longer oppose the current version of KOSA, and said they have been following the lead of experts like PFLAG and The Trevor Project.
When asked for an interview, a PFLAG spokesperson referred The 19th to the joint letter to Blumenthal and suggested speaking to the Human Rights Campaign. But a representative for HRC declined to speak on record for this article.
Julianna Gonen, federal policy director at the National Center for Lesbian Rights, said that technology is not usually in the group’s advocacy wheelhouse but that it was concerned about the potential KOSA had for suppressing LGBTQ+ content.
The Trevor Project originally had “serious concerns” about KOSA, but significant changes made to the bill mean the organization no longer opposes it, Casey Pick, director of law and policy, wrote in a statement to The 19th.
“This is a new area of lawmaking — for both lawmakers and our community. We very much encourage ongoing debate on how best to protect the mental health and well-being of LGBTQ+ young people across social media, while working strenuously to maintain their ability to feel safe, supported, and seen online,” Pick wrote.
Representatives from GLAAD and GLSEN did not respond to requests for interviews for this article.
Willingham said that while NCTE no longer opposes KOSA, the organization is still monitoring the bill.
Seeing the national coalition remove their opposition made McAfee, at Freedom Oklahoma, upset. They think the coalition “took in the bill’s impact at this very national level, without also thinking about the overlapping harms that we’re seeing on the ground in states across the country.”
It’s clear that some of the major changes to language in both the 2023 and 2024 versions of KOSA were due to meetings Blumenthal hosted with the national coalition of LGBTQ+ organizations.
Martinez, at Equality New Mexico, said he is grateful for the public work the national organizations did to change the bill. He understands how no longer being public opponents could play into a larger strategy of working behind the scenes to continue to make the bill less harmful as it works its way through Congress.
Philips said she wants people to consider the dichotomy between the types of groups that no longer oppose the bill publicly and those that do. The LGBTQ+ groups coordinating with Fight for the Future “have a different analysis than the national organizations because they are in the states where these laws can be weaponized most effectively against trans health care, against information about abortion, against specifically trans youth,” Philips said.
“I don’t believe that protecting kids means throwing the most marginalized kids under the bus.”
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Jasmine Mithani is the data visuals reporter at The 19th.
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