Sex toy company sues MTA over rejected ads

Dame is suing New York’s public transit agency for refusing to run subway ads for its women-focused sex toys.

The lawsuit, filed today, points out that New York’s Metropolitan Transportation Authority has regularly approved ads focused on sexuality in recent years, including erectile disfunction drug ads from Hims and Roman, posters for the Museum of Sex, promotion of PrEP and condoms from the New York City Health Department, and more. Dame says the rejection of its sex toy ads is rooted in sexism and is a result of the MTA’s “squeamishness about openly acknowledging female sexual pleasure.”

Sex toy companies have continued to encounter promotional blockades that other companies in the sexual wellness field don’t face. They’re often limited in where they can run ads online (Facebook bans then, while other ad platforms restrict images), and payment processors may be unwilling to handle transactions, for fear that it’ll look bad for their brand.

Women-focused sex toy companies often have it worse. Earlier this year, the largely women-run sex toy company Lora DiCarlo had an award stripped away by the Consumer Technology Association and was banned from presenting at the Consumer Electronics Show, even while a small number of other sex-focused companies made it onto the floor. Following widespread backlash, the CTA reinstated Lora DiCarlo’s award months later and said it would revisit policies around sex toys.

Due to their inability to promote themselves through traditional routes, Lora DiCarlo and Dame have turned their rejections into their own kind of promotional campaigns. Dame’s lawsuit even reads like a story meant to be shared and digested, rather than a terse legal document meant to rapidly resolve a pressing violation of law.

Dame has experienced rejection for its products before. The company launched its first product with a crowdfunding campaign, but it couldn’t use Kickstarter because the platform banned sex toys at the time. It went to Indiegogo instead and raised more than $575,000. When Kickstarter eventually lifted its ban, Dame launched the platform’s first sex toy campaign, raising close to $400,000.

Dame says the MTA’s rejection of its ads “reflects its Victorian view of sexuality and disproportionately harms women.” The lawsuit speaks to the distinction between approved ads, which might enable women’s sexuality through drugs that increase libido, and its own rejected ads, which emphasize achieving pleasure through sexual activity. Dame says the MTA’s action constitute censorship under the First Amendment, because the MTA is a public agency.

The rejected ads included photos of sex toys along with a number of cheeky slogans, like “You come first,” “some riders need extra help getting off,” and “only 4 percent of female riders can get off trains that just stay in tunnels.” The MTA rejected the ads, saying that spots for sexually oriented businesses have “long been prohibited by the MTA’s advertising standards.”

An MTA spokesperson says the agency is “constitutionally entitled” to enforce reasonable restrictions on what ads appear and that the current guidelines are “in no way gender-based or viewpoint discriminatory.” The distinction in approved ads, the spokesperson said, is because the MTA’s guidelines permit ads for FDA-approved medication, whereas “advertisements for sex toys or devices for any gender are not permitted.”

With 5.6 million riders every weekday, New York’s subway is a prime place for a company to introduce itself to potential customers. It frequently features ads from hip direct-to-consumer companies like Away, Quip, and Brooklinen, and it’s been sued many times before over its rejection of ads. The agency came under criticism a few years ago for rejecting ads from Thinx, which promoted underwear designed to be “period proof.” The rejection was widely covered, and the MTA later reversed course.