18 Jun Sextech Company Sues NYC’s Subway for Discriminatory Ad Cen…
The deeply-rooted gender bias in the advertising industry has been widely discussed and is a source of complaints from the femtech and sextech female founder community.
Last January, sextech startup Dame Products announced that the MTA finally made the decision to deny their campaign from running on New York City’s public transportation on the basis of “updated guidelines” banning “sexually oriented” companies. The decision was communicated to cofounders Alexandra Fine and Janet Lieberman in December, after months of working with the agency that revises advertising proposals for the MTA, Outfront.
Now, sextech company Dame Products is officially suing the MTA for forbidding them to advertise. The event adds another chapter to the female founder-led ongoing battle to access advertising platforms that consistently reject female sexual wellness oriented businesses.
The MTA’s Advertising Policy Leads To Arbitrary Censorship
If you are a frequent user of New York City’s subway, you’ve probably been exposed in recent times to multiple instances of erectile dysfunction advertising containing phallic imagery, advertising boosting female breasts promoting breast implants, or pieces inviting transit users to visit the Museum of Sex. These ads were approved by the agency, and therefore seem to not be perceived to fall under the “sexually oriented business” category – even though the products they market are oriented towards facilitating sexual intercourse.
After months of censorship and failed attempts at negotiating with the authority, Fine and Lieberman have decided to take legal action to put an end to the gender bias that is making it very difficult for female-founded and oriented sexual wellness products to compete with male founded alternatives in the category.
Dame Products has a legal team on hand and the complaint details how, first of all, the MTA regulations governing advertisements are applied in a way that systematically disadvantages women and privileges male interests, and second, the MTA violated Dame’s First Amendment rights when it banned their advertisements.
The team seeks damages for the MTA’s violations of Dame’s rights to free speech, due process, and equal protection under the First and Fourteenth Amendments of the United States Constitution, declarations that the Authority’s conduct was unlawful and improper, and an injunction requiring the MTA to approve and display Dame’s advertisements.
In the formal complaint, the plaintiff details the MTA’s continued approval of (the aforementioned) male-centric companies who “reap the tremendous financial benefit and prestige of advertisement space on the MTA’s well-trafficked property.” It also describes the MTA’s view on female sexuality as “Victorian” and points out to the discriminatory nature of the MTA’s “decision to privilege male interests in its advertising choices, and its fundamental misunderstanding of Dame’s products, which have transformed the sexual health and wellness of more than 100,000 consumers.”
What we allow in advertising validates certain scripts and devalues others. When Facebook or the MTA allow erectile dysfunction medication to advertise, they are saying ‘this is a necessary product that you should feel entitled to.’ On the contrary, when they ban our ads, or Unbound’s, we are subtly encouraging sex, but not pleasurable sex. Most people don’t know that advertisements are censored, that the people who have dedicated their lives to improving sex are being silenced. If we can’t tell you that sex is supposed to pleasurable… who will? I think this ad regulations build the container for larger issues, including sexual discrimination and harassment,” states Fine, a trained Sexologist and CEO of Dame.
The line between what constitutes “sexual health” is up for debate. Dame’s research —and a plethora of research conducted by medical professionals specializing in sexual wellness—proves that vibrators, among other sex toys and tools, are beneficial to a variety of conditions, such as arousal difficulties and sexual discomfort caused by pelvic plain. The complaint goes on to list the multiple proven health benefits of sexual pleasure, including mood enhancement and dysmenorrhea relief.
Dame says to have spent approximately $150,000 on staff payment, advertisement revision and development, and preparation for what the MTA had led Dame to believe would be an extensive advertising campaign. “It was a huge burden. That was our advertising plan for Q4, and we couldn’t find any other alternatives so close to Holiday season”, adds Fine.
A quote from Dame included in the legal document states: “By rejecting a campaign we’ve been working on for months, [the MTA] they’ve set us back financially. We’re a female-owned, majority-minority company […] contributing to New York’s tax base while employing women and minorities in STEM positions. A great deal of time and money was spent responding and bending to your direct feedback […] If your agency claims to help the small business women of the Empire State, then we would love to understand your reasoning behind this exhausti[ng] and abortive review process.”
Fine highlights that female founders, specially those catering to women’s underserved needs, are more likely to be labeled as “too political”, due to the added work they conduct to change the status quo and advocate for equal access to opportunities. In the case of the MTA, it’s important that they abide by clear regulations, since the Authority takes taxpayer dollars.