Free speech groups dogpile 'three-time loser' Colorado in appeals court for misgendering law

The Supreme Court has so frequently used Colorado as a punching bag on free speech issues that George Washington University law professor Jonathan Turley thanked "arguably the most anti-free speech state in the union" for its "spectacular legal failures that reaffirmed rather than restricted the First Amendment."

A trio of appeals to the 10th U.S. Circuit Court of Appeals seeks to take down one of Colorado's remaining affronts to the First Amendment, as plaintiffs see it, before the justices can do it themselves: a public accommodations law that prohibits so-called deadnaming, misgendering or otherwise making transgender people feel "unwelcome."

Barely a year old, HB 25-1312 was immediately challenged by gender-critical clothing brand XX-XY Athletics, Christian bookstore Born Again Books, and a coalition including Colorado doctors, medical advocacy group Do No Harm and parental rights groups Defending Education, Colorado Parent Advocacy Network and Protect Kids Colorado.

U.S. District Judge Regina Rodriguez, nominated by President Biden, refused to block the law just hours after the Supreme Court ruled 8-1 against Colorado's "egregious" censorship of counselor Kaley Chiles for her so-called conversion therapy – talking to minors non-judgmentally rather than automatically affirming their gender confusion.

Rodriguez had to pivot quickly to distinguish Chiles from the consolidated plaintiffs challenging the public accommodations law, recycling Colorado's belated and unsuccessful argument for the conversion therapy ban that the law didn't cover any plaintiff.

The Independent Women's Law Center, Manhattan Institute, Southeastern Legal Foundation and Center for American Liberty, founded by Assistant Attorney General for Civil Rights Harmeet Dhillon, are backing the trio of plaintiffs in friend-of-the-court briefs across the three filed appeals, the dockets for the three cases show.

"This is Colorado's latest attempt to censor dissenting speech on sex and gender issues," after successful challenges in Chiles as well as Masterpiece and 303 Creative, the Manhattan Institute said, referring to Jack Phillips and Lorie Smith, respectively, when Colorado threatened the Christians for refusing to make custom same-sex wedding cakes and websites.

"Colorado has proven time and again that they are willing to enforce Woke laws that explicitly violate the First Amendment," SLF President Kimberly Hermann said. "No one wants anyone to feel unwelcome, but the First Amendment does not disappear simply because someone feels offended" and wants speech punished "based on feelings rather than facts."

Colorado ignores 'plain text' of statute to argue it won't punish speakers

The Alliance Defending Freedom filed opening briefs last week on behalf of XX-XY Athletics, founded by 1986 U.S. Women's All-Around National Champion gymnast Jennifer Sey, and Born Again Books, both based in Colorado. Consovoy McCarthy filed an opening brief on behalf of the coalition led by Defending Education.

Colorado has "repeatedly conceded" that enforcement of the challenged provisions of the state's Anti-Discrimination Act is "possible" against XX-XY Athletics, which uses "biologically correct" language for males and females in its public statements and "customer interactions," and the company "shouldn’t have to bet the farm to find out," its brief says.

Defendant Civil Rights Division Director Aubrey Sullivan's reading of the 2025 amendment, which prohibits "gender expression" discrimination based on chosen names and how someone chooses to be addressed, is not backed by the "plain text," which includes no "intent" or "hostile environment" requirement, and it's not binding on future leaders, XX-XY said.

The Centennial State's own expert witness confirmed that "not using someone’s name and pronouns makes them feel insulted, rejected, unwelcome, and like they might not even be served," objectively triggering the catchall and advertising-specific "unwelcome" clauses, under which alleged victims and state officials can file discrimination charges.

"Colorado has enforced CADA against nearly identical conduct" – a blood bank that labeled a female-identifying donor as male internally, due to regulations on male-specific "HIV-screening questions" – and it preceded the 2025 amendment, the brief says. XX-XY's expressive conduct is no less subjectively offensive, so it's not clear why it wouldn't face enforcement.

The Born Again Books brief is similar to XX-XY's – the idiom "bet the farm" appears in each – but it claims enforcement is likely due to the bookstore's plans to write a policy on its "pronoun and gendered-title practice," blog post explaining the Christian beliefs behind its decision and similar social media content on people living "consistent with their God-given sex.”

The Defending Education coalition brief says the plaintiffs "frequently host events in places of public accommodation and operate public-facing medical practices" and want to use "biologically accurate language when they address people," making them vulnerable to enforcement.

They should either get a preliminary injunction because the Colorado defendants didn't respond to their arguments that CADA is unconstitutional, or else the 10th Circuit "can resolve the merits itself" as a "pure legal question" – whether the law "compels speech, discriminates based on content and viewpoint, is overbroad, and is vague."

Red states can do it, too

The Manhattan Institute and Independent Women's Law Center filed a joint brief covering all three cases, citing MI's interests in "constitutional speech protections because its scholars have been targets of speech-suppression efforts" and IWLC's in "preserving women’s sex-based civil rights and liberties, which dissolve when sex-based terms come to mean their opposite."

CADA's provisions "impermissibly compel individuals to speak contrary to their beliefs—whether rooted in science, faith, or philosophy—regarding the binary and immutable nature of biological sex," and SCOTUS "has never permitted states to compel individuals to speak contrary to their beliefs" even in public accommodations law, the brief says, citing 303 Creative.

The harm goes beyond compelled speech for females, "reducing self-esteem and sense of personal control" and letting males "steal opportunities from females in athletics" due to the former's "significant physiological advantage" and physically injure the latter.

Dhillon's Center for American Liberty filed apparently identical briefs Monday in each case, making it the most recent outside group thus far to file. 

"A discretionary enforcement regime chills speech when officials reserve power to punish after the fact," the briefs say. 

When Colorado reassures the court that using "biologically accurate language" does not violate CADA "per se," it leaves itself room to punish speech "if officials later decide that the full context made it "discriminatory, harassing, unwelcome, objectionable, unacceptable, or undesirable," CAL says, citing the far-reaching language in the law.

Speakers with "traditional views on sex and gender" must now "predict how future complainants, investigators, commissioners, administrative law judges, and courts will characterize the same words after the fact." The lesson is "they may continue participating in public life only if they moderate their language, soften their message, or refrain from speaking."

The 10th Circuit must preempt Colorado from authorizing officials to "decide which viewpoints are respectful enough to be allowed and which are offensive enough to be punished" before it becomes "a template for using public-accommodation law to control speech far beyond this case," CAL says.

A red jurisdiction could force businesses to "use only biologically accurate pronouns, deeming contrary language misleading, offensive to women, or inconsistent with the dignity of sex-based spaces," or treat "refusal to use religious titles" as unwelcome to religious patrons.

"A licensing regime could pressure counselors, doctors, bookstores, advocacy groups, or event organizers to adopt the State’s preferred terminology on abortion, sexuality, race, religion, immigration, or national identity whenever officials conclude that contrary language denies equal enjoyment," CAL says.

"Colorado has a dubious history of trampling First Amendment rights in its pursuit to shield members of the LGBTQ+ community from dissent regarding their lifestyle choices," SLF's brief says.

"Many states go more than a decade between defending any law" against a First Amendment challenge at SCOTUS, but Colorado is a "three-time Supreme Court loser in just the last eight years," the brief says. It's a scofflaw against clear SCOTUS precedent, persisting in "headstrong efforts to force orthodoxy onto its citizens" with credible threats of prosecution.