Pro-biological sex clothing brand sues Colorado for 'deadnaming' law as Trump, DOJ squeeze Calif.

Colorado's new law prohibiting so-called deadnaming and misgendering transgender people in places of public accommodation could be challenged on any number of First Amendment grounds, even without the child custody provisions hastily stripped from the bill to address concerns by Democratic Gov. Jared Polis and some LGBTQ groups.

But the first major test of HB 25-1312, signed by Polis without a statement or ceremony, comes from an athletic wear company that markets itself as "the only brand standing for women's sports" and sells subscriptions to its own women-only running club.

XX-XY Athletics, founded by former world-class gymnast Jennifer Sey last year, sued the Colorado Civil Rights Division, Colorado Civil Rights Commission and Attorney General Phil Weiser to protect its continued ability to identify "men and boys who compete in women’s sports" by given names and biologically accurate pronouns in its marketing.

Because the amendments to the Colorado Anti-Discrimination Act guarantee the use of a "chosen name" and the choice of how to be addressed in public accommodations and advertising, "XX-XY Athletics can no longer speak the truth in pursuit of its mission" and "call men, men" in its ads and customer interactions, the lawsuit says.

"Colorado officials have not hesitated to go after businesses for violating" previous CADA iterations, "torching the First Amendment in the process," the brand alleged, noting the Supreme Court sided with Jack Phillips and Lorie Smith when regulators targeted them for refusing to celebrate same-sex marriage in custom cakes and websites.

XX-XY faces imminent "cease-and-desist orders, expensive investigations, hearings, and civil and criminal penalties" if it keeps speaking "its desired message and views," the suit says.

It's at least the second federal lawsuit against Colorado regarding gender identity policies this month, with Christian camps challenging new childcare licensing rules that prevent them from segregating children by sex in housing and intimate facilities.

A federal judge in February also struck down Colorado's exclusion of a Christian school from its Universal Preschool Program for violating gender identity rules, and the Colorado Supreme Court tossed the latest lawsuit against Phillips last fall for refusing to make a gender transition cake, albeit on a technicality.

On a related front, the Golden State is facing White House and Department of Justice scrutiny for letting males who identify as girls compete in and dominate girls' sports.

The California Interscholastic Federation bowed to the practical and political consequences of elevating gender identity over sex Tuesday after President Trump threatened to hold its "large scale" federal funding, "maybe permanently," for letting male athlete AB Hernandez compete in girls' track and field, winning two titles this month.

In a cryptic statement buried on its website alluding to the Hernandez controversy, CIF said it created a "pilot entry process" for "any biological female student-athlete" to participate in championships this weekend "who would have earned the next qualifying mark" and "did not achieve the CIF State at-large mark."

The Associated Press said it "may be the first attempt nationally by a high school sports governing body to expand competition when trans athletes are participating."

The last-minute change didn't stop DOJ on Wednesday from opening an investigation into whether California's 12-year-old transgender sports participation law (AB 1266) violates Title IX. It filed a statement of interest the same day in a lawsuit by Save Women's Sports challenging the law as applied by Riverside Unified School District.

"Allowing girls to compete on their own teams, and not against boys, has resulted in many salutary effects for girls," but "the presence of a biological male-transgender female competing on a girls’ cross-country team," for Martin Luther King High School, "upsets the level playing field" for female athletes, the statement of interest says.

Gives officials 'unbridled discretion' via vague language

Quietly signed by term-limited Gov. Polis, who is reportedly positioning himself as a centrist for the 2028 Democratic presidential nomination, HB 25-1312 hits XX-XY Athletics directly because its "principal place of business is in Colorado," specifically Denver, the suit says.

It portrays the company's founding as par for the course for Sey, also former brand president of Levi's, who has "long believed it is important for her to use her platform to speak inconvenient truths and stand up for women and children," such as a book she wrote and documentary she produced on abuse in gymnastics. 

Because "powerful regulators, corporations, and cultural forces silenced any dissent" against males identifying as girls to compete against females and "many of the legacy athletic clothing brands … chose to either support this injustice or stay silent," Sey saw an opening as an "apparel industry leader" to fill this niche in the market.

Through its physical presence in The Centennial State, via "pop-up shops" at like-minded conferences that take place in public accommodations, as well as virtual communications with actual and potential customers and online advertising, XX-XY falls under the aegis of the new law, the suit says.

Its brand messaging "focuses almost exclusively on protecting women’s sports from the unfair inclusion of biologically male athletes," while its name obviously "references the male-female chromosomal binary" and its immutable characteristics relevant to sports. If those aren't clear, the messages on its apparel like "Save Women's Sports" communicate its identity.

A core part of its brand is identifying male athletes by their unwanted given names and pronouns, which now imperils it under HB 25-1312, the suit says.

Sey identified Lia Thomas by the transgender swimmer's pre-transition name Will at a May 1 event in Aurora and an April 9 University of Colorado debate on HB 25-1312, and its social media content has identified Oregon track star “Zachary ‘Liaa’ [sic] Rose," swimmer “Hugo ‘Ana’ Caldas" and a string of males competing as girls in California track including Hernandez.

These practices have drawn "hateful and sometimes violent rhetoric" against Sey at her public appearances, the suit says.

Because of undefined language in the law such as "unwelcome,” “objectionable,” “unacceptable,” and “undesirable," and what it means to "indirectly" circulate CADA-regulated communications, it gives "unbridled discretion" to Colorado officials to enforce the law against XX-XY while preventing it from knowing whether its speech violates the law.

"XX-XY Athletics happily sells its products to anyone, regardless of any protected characteristics, including gender expression," but it "will not knowingly refer to anyone—customer, prospective customer, athlete, public figure, or member of the public" using language "contrary to the person’s biological sex."