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Pride and prejudice
Last week, seven Republican state attorneys general sent a letter to Target CEO Brian Cornell warning that selling LGBTQ-themed merchandise "to families and young children" may be illegal. The letter, written by Indiana Attorney General Todd Rokita (R) — and co-signed by the attorneys general of Arkansas, Idaho, Kentucky, Missouri, Mississippi, and South Carolina — alleges that selling "LGBT-themed onesies, bibs, and overalls, t-shirts" could violate "[s]tate child-protection laws" prohibiting the “sale or distribution… of obscene matter." An item is obscene, the letter notes, if its "dominant theme… appeals to the prurient interest in sex."
The actual LGBTQ-themed merchandise sold by Target in kids sizes, however, is patently not obscene.
The letter cites a number of other state laws "to protect children," including new laws requiring material "harmful to minors" to be removed from school libraries, prohibiting "gender transition procedures on minors," and banning the use of a minor's preferred pronoun. The attorneys general admit that "these laws may not be implicated" by the merchandise for sale at Target but "they nevertheless demonstrate that our States have a strong interest in protecting children."
Unable to marshall a real legal argument, much of the letter involves parroting misinformation about the items offered for sale in Target during Pride Month. For example, the letter claims that Target sold "girls’ swimsuits with 'tuck-friendly construction' and 'extra crotch coverage' for male genitalia." This is false. Those swimsuits were "only offered in adult sizes."
The attorneys general also object to Target selling a t-shirt called "Pride Adult Drag Queen Katya." As the name suggests, this is a t-shirt that is offered only in adult sizes.
Although off-topic, the letter also accuses Target of "products with anti-Christian designs, such as pentagrams, horned skulls, and other Satanic products." This is also a lie. The attorneys general cite a Reuters article as the source of this claim. But the Reuters article notes that these allegedly "Satanic products" were "not sold at Target." According to the Associated Press, "[w]hile some items made by the brand Abprallen were among those featured by the big box retailer as part of its Pride month collection, none of the items bore satanic imagery." Rather, "[t]he three items featured had images of UFOs and planets."
Even if all these false claims were true, it is unclear what laws Target would be violating. Swimsuits, drag queen t-shirts, and anti-Christian merchandise are not obscene or illegal. Just because these Republican politicians don't approve of these items does not make them unlawful.
Although the letter is replete with flawed legal analysis and factual inaccuracies, it should not be dismissed. It is a clear effort by the chief legal officers of seven states to criminalize acknowledging the existence of LGBTQ people, claiming that doing so is a threat to children. Rokita and the other attorneys general are using the power of their offices — and the implicit threat of legal action — to pressure Target to exclude LGBTQ customers and allies from their business strategy.
Jennifer Drobac, a professor at Indiana University School of Law, told the Indianapolis Star that Rokita's letter could prompt "complaints to the state Supreme Court's disciplinary commission." Indiana's Rules of Professional Conduct states that attorneys cannot "by words or conduct" demonstrate "bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors." Drobac says that Rokita's letter to Target "is targeting particular segments of our population for public disdain."
How not to run a business
The attorneys general also suggest that Target executives are violating their fiduciary duty to shareholders by offering merchandise designed to appeal to the LGBTQ community. The letter cites the recent drop in Target's stock price which it attributes to a "massive backlash" from families as a result of its decision to sell LGBTQ-themed merchandise. This is a myth.
It is, of course, possible a few investors sold their Target stock because they objected to the retailer recognizing Pride Month. But, according to investment analysts, the recent decline reflects "broader changes in the US economy, the possibility of a recession, and Target’s over-exposure to discretionary merchandise." Specifically, "[m]ore than half of Target’s merchandise is discretionary – clothing, home decor, electronics, toys, party supplies and other non-essentials." As Target's customer base of "middle-income households" have seen the cost of essential items increase due to inflation, they have cut back on these discretionary items.
Target and many other companies court LGBTQ consumers because they are a large group of potential customers with money to spend. According to a 2021 study, the LGBTQ community in the United States has about $1.4 trillion in spending power. Ignoring millions of potential customers does not seem like the best way to deliver value to shareholders.
The myth of the woke corporation
The letter from the attorneys general to Target is part of the Republican crusade against "woke" corporations. The allegation is that these corporations are systematically pursuing a left-wing agenda on LGBTQ rights and other issues.
It's true that many corporations have public-facing communications touting their commitment to the LGBTQ community. In June, for example, T-Mobile ran a national TV ad celebrating Pride Month. "Pride isn't just a day or a month," the narrator says. "At T-Mobile, it's in our DNA and it's every day."
All seven signatories of the anti-LGBTQ letter to Target are members of the Republican Attorneys General Association (RAGA), including the immediate past chairman, South Carolina Attorney General Alan Wilson (R) and the current policy chair, Mississippi Attorney General Lynn Fitch (R). RAGA spends tens of millions helping its members get elected and promoting their agendas in office. On Saturday, RAGA promoted Rokita's letter to Target on Twitter:
RAGA has not yet disclosed its contributors in 2023. But T-Mobile donated a combined $65,000 to RAGA in 2021 and 2022.
Anheuser-Busch has also been the focus of Republican attacks for its purported support of the LGBTQ community. The company sent trans influencer Dylan Mulvaney a custom pack of Bud Light featuring her face. Mulvaney used the bespoke cans in a video to advertise Bud Light’s March Madness contest. In response, the right-wing launched a nationwide boycott.
But has Anheuser-Busch really gone "woke"? In 2021 and 2022, the company donated a combined $210,000 to RAGA. On June 29, 2022, the company donated $1,000 directly to Rokita's reelection campaign.