VICTORY IN VIRGINIA

In re: Gender Queer, A Memoir

Case No. CL22-1985
In the Circuit Court for Virginia Beach, VA
August 30, 2022

Successfully defended by

https://cbldf.org
 INTRODUCTION

On April 28, 2022, a candidate for the U.S. Congress filed a court petition in Virginia Beach,
Virginia, to have Maia Kobabe’s graphic novel memoir Gender Queer declared obscene. If the
challenge had achieved its goal, selling or distributing the book would have been a crime.

The Comic Book Legal Defense Fund took the case, with Interim Director, Jeff Trexler, serving
as Kobabe’s counsel. To help with the defense, the CBLDF also reached out to renowned
appellate lawyer L. Steven Emmert to serve as local counsel.

Although the judge initially agreed with the petitioner that there was probable cause for finding
Gender Queer obscene, on August 30, 2022, the court subsequently found the Virginia statute
under which the petitioner brought the case to be unconstitutional. The petitioner chose not to
appeal, and the case is now closed.

The following is a collection of court filings from this landmark case, including
• Code of Virginia § 18.2-384, the statute at issue in the case,
• The original petition to have Gender Queer declared obscene,
• The court’s order to show cause that Gender Queer is not obscene, along with the
petitioner’s motion for a temporary restraining order prohibiting distribution of the book,
• Our motion to dismiss and the brief in support of this motion,
• An excerpt from the petitioner’s reply brief, with his argument that graphic novels are a
distinctly dangerous influence on the minds of children,
• Our response to the petitioner’s arguments, and
• The court’s ruling.

– from our Brief in Support of the Motion to Dismiss, July 26, 2022

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https://www.washingtonpost.com/education/2022/08/30/barnes-and-noble-virginia-book-ban/

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https://slate.com/culture/2022/08/virginia-obscenity-lawsuit-dismissed-gender-queer-book-
banning.html

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Code of Virginia 1950 > Title 18.2. Crimes and Offenses Generally. (Chs. 1 — 13) > Chapter 8.
Crimes Involving Morals and Decency. (Arts. 1 — 8) > Article 5. Obscenity and Related Offenses. (§§
18.2-372 — 18.2-389)

§ 18.2-384. Proceeding against book alleged to be obscene.

A. Whenever he has reasonable cause to believe that any person is engaged in the sale or
commercial distribution of any obscene book, any citizen or the attorney for the Commonwealth of
any county or city, or city attorney, in which the sale or commercial distribution of such book
occurs may institute a proceeding in the circuit court in said city or county for adjudication of the
obscenity of the book.
B. The proceeding shall be instituted by filing with the court a petition:
1. Directed against the book by name or description;
2. Alleging the obscene nature of the book; and
3. Listing the names and addresses, if known, of the author, publisher, and all other persons
interested in its sale or commercial distribution.
C. Upon the filing of a petition pursuant to this article, the court in term or in vacation shall
forthwith examine the book alleged to be obscene. If the court find no probable cause to believe
the book obscene, the judge thereof shall dismiss the petition; but if the court find probable cause
to believe the book obscene, the judge thereof shall issue an order to show cause why the book
should not be adjudicated obscene.
D. The order to show cause shall be:
1. Directed against the book by name or description;
2. Published once a week for two successive weeks in a newspaper of general circulation
within the county or city in which the proceeding is filed;
3. If their names and addresses are known, served by registered mail upon the author,
publisher, and all other persons interested in the sale or commercial distribution of the book;
and
4. Returnable 21 days after its service by registered mail or the commencement of its
publication, whichever is later.
E. When an order to show cause is issued pursuant to this article, and upon four days’ notice to be
given to the persons and in the manner prescribed by the court, the court may issue a temporary
restraining order against the sale or distribution of the book alleged to be obscene.
F. On or before the return date specified in the order to show cause, the author, publisher, and any
person interested in the sale or commercial distribution of the book may appear and file an answer.
The court may by order permit any other person to appear and file an answer amicus curiae.
G. If no one appears and files an answer on or before the return date specified in the order to show
cause, the court, upon being satisfied that the book is obscene, shall order the clerk of court to
enter judgment that the book is obscene, but the court in its discretion may except from its
judgment a restricted category of persons to whom the book is not obscene.

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 H. If an appearance is entered and an answer filed, the court shall order the proceeding set on the
calendar for a prompt hearing. The court shall conduct the hearing in accordance with the rules of
civil procedure applicable to the trial of cases by the court without a jury. At the hearing, the court
shall receive evidence, including the testimony of experts, if such evidence be offered, pertaining
to:
1. The artistic, literary, medical, scientific, cultural and educational values, if any, of the book
considered as a whole;
2. The degree of public acceptance of the book, or books of similar character, within the
county or city in which the proceeding is brought;
3. The intent of the author and publisher of the book;
4. The reputation of the author and publisher;
5. The advertising, promotion, and other circumstances relating to the sale of the book;
6. The nature of classes of persons, including scholars, scientists, and physicians, for whom
the book may not have prurient appeal, and who may be subject to exception pursuant to
subsection G.
I. In making a decision on the obscenity of the book, the court shall consider, among other things,
the evidence offered pursuant to subsection H, if any, and shall make a written determination upon
every such consideration relied upon in the proceeding in his findings of fact and conclusions of
law or in a memorandum accompanying them.
J. If he finds the book not obscene, the court shall order the clerk of court to enter judgment
accordingly. If he finds the book obscene, the court shall order the clerk of court to enter judgment
that the book is obscene, but the court, in its discretion, may except from its judgment a restricted
category of persons to whom the book is not obscene.
K. While a temporary restraining order made pursuant to subsection E is in effect, or after the
entry of a judgment pursuant to subsection G, or after the entry of judgment pursuant to subsection
J, any person who publishes, sells, rents, lends, transports in intrastate commerce, or commercially
distributes or exhibits the book, or has the book in his possession with intent to publish, sell, rent,
lend, transport in intrastate commerce, or commercially distribute or exhibit the book, is presumed
to have knowledge that the book is obscene under §§ 18.2-372 through 18.2-378 of this article.
L. Any party to the proceeding, including the petitioner, may appeal from the judgment of the
court to the Court of Appeals, as otherwise provided by law.
M. It is expressly provided that the petition and proceeding authorized under this article, relating
to books alleged to be obscene, shall be intended only to establish scienter in cases where the
establishment of such scienter is thought to be useful or desirable by the petitioner; and the
provisions of § 18.2-384 shall in nowise be construed to be a necessary prerequisite to the filing of
criminal charges under this article.
History: Code of Virginia 1950, § 18.1-236.3; 1960, c. 233; 1975, cc. 14, 15; 2021, Sp. Sess. I, c. 489.

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VIR.GINik IN THE CIRCUIT COURT FOR THE CITY OF VIRGINIA BEACli

In Re. Geruler Queer, A 1¥lemoir Case No: Cl.22-1.985

ORDER TO SHOW CAUSE PURSUANT TO

"" OF' TIJE CODE OF VIRGI NIA
18.2-.384
...
('.AME THIS DAV. the Pctiticmcr and moved thi:!i ('.c_n:i.rt for an cnby ofShc,w C:an:se prmamnt to
18.2•384 of the Code ofVi.rginia,todecfarethe book Gender Qu.eer, A Memoir, ISBN: 978-l -
5493 ..0400-2 (ib~c fQT ,m,reslrided viewing by mjnotS, nnd the Court ha\1ing reviewed.the
Petition, aod the subject book i.n question finds dmt there is probable ca.use to beli.~,-·e 1ha.t the
book Gen.d er Queer, A Memoir is obscene for llllreS-tricred viewing by minors and does hereby

ORDER th at counsel for the P,e titiooer shall s--.Jld by registered mail a copy of the petition and
fhis on.ler to:
Author: Maia K.obabe: Address: 4040 Ri.cki.r:nba;cb:r Dir. SaJJta. ltosa CA 954-0'i
Publisbe1: Lion Forge LLC - 2Z7 . Unc!i;nb,crgh 81.vd, St. l.Qu,is, MO 63141
And that further it is
ORDERED that !'Mara K.obabe and H on Forg,e LLC. shall l"CSpQnd to th<: allegatiom, of this
petition within 21 dayfi afier sewiceo:filhis order by registered mail or by publicad on. wbichi::ver
is later and it is further
'
ORDERED that a copy of ibis ORk:r be circulated mthe Virg:inia P ilot, a newspa:per of general
<:in::ulati.on. oooe per week for two suc,ces.sive weeks starting Ma~• 26. 2022

I ask for ith:is:

Timodiy Andeaon
Counsel for the P,etitioner
2492 N. Landing Rd l 04
V:irginiaBeach VA 2:3456
757~30l-36% Tel
757-301-3640 Fax

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VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF VIRGINIA BEACH

In Re. Gender Queer, A Memoir Case No: CL22-1985

MOTION FOR TEMPORARY RESTRAINING ORDER

Comes now, the Petitioner, Tommy Altman, by counsel, and moves this Court for the

issuance of a Temporary Restraining Order against the parties listed on the certificate of service

from publishing, selling, renting, lending or exhibiting the book the book Gender Queer, A

Memoir to minors.

Book Title: Gender Queer, A Memoir / ISBN 978-1-5493-0400-2

Author: Maia Kobabe: Address: 4040 Rickenbacker Dr, Santa Rosa CA 95407

Publisher: Lion Forge LLC - 227 N. Lindenbergh Blvd, St. Louis, MO 63141

And in support thereof states as follows:

1. That on May 18, 2022, this Court entered an Order to Show Cause pursuant 18.2-384

of the Code of Virginia finding probable cause that the aforementioned book is

obscene for unrestricted viewing by minors.

2. Pursuant to 18.2-384(5) and 18.2-384(11) of the Code of Virginia this Court may,

upon four days' notice to be given to the persons and in the manner prescribed by the

court may issue a temporary restraining order against the sale or distribution of the

book alleged to be obscene.

Wherefore, the Petitioner moves this Court for a Temporary Restraining Order prohibiting the

sale or distribution to minors by any person who publishes, sells, rents, lends, transports in

intrastate commerce, or commercially distributes or exhibits the book, or has the book in his

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possession with intent to publish, sell, rent, lend, transport in intrastate commerce, or

commercially distribute or exhibit the book Gender Queer, A Memoir

Respectfully Submitted,
Tommy Altman
By: ·~

Counsel
Timothy Anderson
Anderson & Associates PC
2492 N. Landing Rd 104
Virginia Beach VA 23456
757-301-3636 Tel
757-301-3640 Fax

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true copy of this notice was emailed to the following:
Regina.Toneatto@VBSchools.com
Clerk of the Virginia Beach School Board
2512 George Mason Drive
Virginia Beach VA 23456

And sent via Fedex Overnight Delivery to:

Brad Feuer Vice President,

General Counsel and Corporate Secretary
Barnes & Noble, Inc.
122 Fifth Avenue New York, NY 10011

This lf day of May 2022.

Timothy Anderson

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 Virginia Beach Circuit Court
Civil Division

IN RE: GENDER QUEER, A MEMOIR (Case No. CL22-1985)

&

IN RE: A COURT OF MIST & FURY (Case No. CL22-1984)

PETITIONER’S OMNIBUS BRIEF

IN OPPOSITION OF
RESPONDENTS' MOTIONS

Timothy V. Anderson, Esq.

VA Bar No. 43803
Anderson & Associates
2492 N. Landing Road Suite 104
Virginia Beach, VA 23456
(757) 301-3636
timanderson@virginialawoffice.com
Attorney for Petitioner

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 The graphic novel is a relatively new concept that exploded in popularity beginning in

2020 with over $1 billion in annual sales, with top sellers moving 150,000 units a week.14

Children are being trained to think both visually and verbally and the convergence of these two

elements produces a powerful experience that simply cannot be obtained through words on a

page and graphic novels are catered to males more than females as males interact with visual

materials more favorably. The impact of the visual and verbal elements reaches deeply and is an

active mental act. Id. Children are influenced by printed words and even more so by printed

pictures.15 Pornography is defined as the “depiction of erotic behavior (sexual display in pictures

or writing) that is intended to cause sexual excitement in the viewer.”16 Children can’t help being

influenced by what they see. Exposure to sexual content or images only stimulates sexual desire

in a child by the presentation format, creating a desire to translate “fantasy” into reality. Id.

Research has repeatedly shown that media has tremendous capacity to teach, particularly when

sexually explicit, potentially skews a child’s worldview, and increases high-risk behaviors.17

Children and youth are more vulnerable to pornographic images than adults because of mirror

neurons in the brain, which convince them that they are actually experiencing what they see. Id.

Mirror neurons play an important role in how children learn and since children learn in large part

by imitation, mirror neurons are involved in the process of observing what other people do and

imitating those behaviors. Id. Pornographic images have stronger effects among children and

youth than other forms of media because they show a much higher degree of sexual explicitness,

14
https://news.asu.edu/20170214-creativity-asu-capitalizes-novels-get-graphic
15
https://psychotherapy.psychiatryonline.org/doi/pdf/10.1176/appi.psychotherapy.1996.50.4.431
16
https://acpeds.org/position-statements/the-impact-of-pornography-on-children
17
https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_prac
tice/vol-33/may-2014/how-pornography-harms-children--the-advocate-s-role/

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and schools know this because they are directed to have internet policies protecting children

from accessing sexual materials similar to content both books contain.18 Exposure to sexual

content can compromise a child’s ability to establish and maintain healthy intimate relationships.

Sexual socialization theory suggests that frequent exposure to consistent themes about gender

and sexual behavior can affect a young person’s developing sense of what is expected sexually

for men and women and may also affect later behavior. Id. Further, exposure to sexually explicit

images is addictive for children and medical literature supports the premise that a person with

one addiction is likely to have another. Id. Sexual addiction for children and youth sets them up

for a life-long struggle in which the child’s focus, biological reward system, and behavior are

interwoven with themes of sexual pleasure. Id.

18
§ 22.1-70.2. Acceptable Internet use policies for public and private schools.

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