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No one doubts that the State of Colorado has an interest in protecting its citizens’ access to public spaces. But once again, the state has made clear that it believes that its anti-discrimination laws are not subject to the demands of the Constitution’s First Amendment.
The Supreme Court weighed in on just such a question in 2023 in 303 Creative v. Elenis, determining there that Colorado could not use its anti-discrimination law to force a website designer to express messages with which she disagreed. But Colorado remains undeterred in its efforts to punish politically disfavored speech.
Colorado’s Antidiscrimination Act (CADA) requires, among other things, equal access to places of public accommodation regardless of disability, race, creed, color, sex, sexual orientation, marital status, family status, religion, national origin, ancestry, gender identity, or gender expression. Places of public accommodation are defined broadly to include any place offering sales, services, or facilities to the public.
But Colorado’s recent amendment to CADA—House Bill 25-1312—does not simply regulate access to public accommodations. It regulates speech within those accommodations. Specifically, the new law revises the definition of “gender expression,” a protected category in Colorado law, to punish anyone operating within a public accommodation who declines to use someone’s “chosen name” or other terms by which they “choos[e] to be addressed,” like preferred pronouns. In other words, even if you firmly believe that sex and gender are immutable, Colorado requires you to use language affirming transgender identity.
What’s more, CADA also contains vague provisions punishing anyone who “directly or indirectly” publishes, sends, or distributes “any” statement that makes someone feel their presence is “unwelcome, objectionable, unacceptable, or undesirable” in a place of public accommodation based on their “gender expression” or any other protected category. These subjective prohibitions do not define any of their key terms. Instead, they leave Coloradans to simply guess what kinds of statements Colorado’s highly politicized Civil Rights Commission will consider “offensive” or “unwelcoming.” That is a recipe for chilled speech if there ever were one.
A violation of HB 25-1312 carries with it the possibility of required mediation, re-education, and a $5,000 fine. It also provides a basis for private litigation against speakers, carrying with it the risk of usurious legal judgments and attorney’s fees.
That’s why our organization, Defending Education, is suing the State of Colorado. Joining us in the lawsuit are Do No Harm (a gender-critical medical association), two Colorado parental rights organizations, and two Colorado physicians. We—and they—ascribe to the notion of sex as fixed at birth and don’t want to be forced to lie, remain silent, or subject to prosecution by the Colorado Civil Rights Commission simply for expressing what we believe.
Our claims are rooted in the First and Fourteenth Amendments. We argue that the “gender expression” and “chosen name” definitions and the provisions barring “unwelcoming” statements compel speech, discriminate based on content and viewpoint, and are overbroad—both facially and on an as-applied basis. We also argue that these laws are vague and invite arbitrary government enforcement.
States may not regulate or punish the speech of those who operate in a place of public accommodation. The Supreme Court made this plain in, among other cases, Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, in which it noted that states are “not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.”
The Supreme Court has also never allowed states to use anti-discrimination laws to punish protected speech just because some people find that speech offensive. In fact, when states have imposed burdens on freedom of expression in order to avoid discrimination (such as in Boy Scouts v. Dale, in which New Jersey sought to suppress expression that conveyed disapproval of “homosexual conduct”), the Supreme Court has found a First Amendment violation.
As it noted in Riley v. National Federation of the Blind, the First Amendment protects an individual’s right to speak freely, including “the decision of both what to say and what not to say.”
We believe this hornbook principle of First Amendment law must be defended.
