Can you be legally punished for misgendering someone? Colorado says yes. | Opinion
Colorado has threatened to sic the thought police on anyone who doesn't comply by using state-approved language about transgender people.
You’d think that after two significant losses at the U.S. Supreme Court, Colorado would tread more carefully with its anti-discrimination laws.
No such luck.
A new law, signed by Democratic Gov. Jared Polis in May, expands the Colorado Anti-Discrimination Act to make deadnaming and misgendering transgender individuals a punishable offense. California, not surprisingly, has tried something similar but on a more limited basis.
The updated Colorado provisions have already attracted lawsuits on the grounds that the law violates the U.S. Constitution, including the First Amendment.
Much like two other Colorado cases involving a cake baker and a web designer that reached the Supreme Court, this law pits free speech rights against public accommodation protections. At the heart of those cases, as well as this one, is the fact that the government – no matter how well-intentioned – cannot compel speech or chosen messages.
And that’s what Colorado’s trans rights law would do, by claiming “it is now a ‘discriminatory practice’ under Colorado law to refer to transgender-identifying individuals by their birth name (i.e., not their ‘chosen name’) or to use biological pronouns (i.e., not their preferred pronouns) in a place of public accommodation,” according to the first lawsuit, filed by a group of national and Colorado parental-rights organizations, including Defending Education.
Forced gender ideology adherence? Here come the thought police.
The law describes “gender expression” as including someone’s “chosen name” and “how an individual chooses to be addressed.”
That is troublesome to the groups involved because a lot of the work they do centers on pushing back against gender ideology.
Using biologically accurate terms is integral to their work. For instance, when discussing whether transgender students should participate in girls’ sports, the debate is rooted in the biological differences between boys and girls.
Now, the groups are at risk of violating the law when speaking in public spaces in Colorado.
“H.B. 25-1312 was passed for the very purpose of suppressing traditional views on sex and gender and punishing those who refuse to address transgender-identifying individuals using so-called chosen names and preferred pronouns,” the lawsuit states.
Those punishments could include investigations, lawsuits and fines, in addition to the possibility of “participation in mandatory educational programs” if deemed necessary by the Colorado Civil Rights Commission.
Thought police, anyone?
“I think it’s the first time that we’ve seen a state actually try to cement in its own anti-discrimination canon a requirement to violate the First Amendment,” Sarah Parshall Perry, Defending Education’s vice president and legal fellow, told me.
She said the Supreme Court has made clear that in addition to the government forcing someone to communicate a message, forcing someone to silence themselves – essentially creating a heckler’s veto – is a free speech violation.
Businesses like XX-XY Athletics should be able to speak the truth
The second federal lawsuit against Colorado’s law was filed by Alliance Defending Freedom on behalf of XX-XY Athletics, which was founded in Denver in 2024 by former Levi’s executive Jennifer Sey.
As the name implies, XX-XY Athletics is an athletic brand that unapologetically defends women’s sports and spaces and has been outspoken about why biological men shouldn't be competing with women athletically. So using correct language is vital to the company’s branding and advertising.
“Colorado continues to place itself on the wrong side of the law by forcing Coloradans to speak against their conscience,” said Hal Frampton, ADF senior counsel, in a statement.
ADF is the law firm that secured wins for its Colorado clients – baker Jack Phillips and web designer Lorie Smith – in two cases that reached the Supreme Court. So it’s well-positioned to intervene now.
Colorado wants to mandate “kindness” for the LGBTQ+ community through its anti-discrimination laws. Yet, what state officials refuse to learn is that no law is above the Constitution.
And in this case, requiring citizens to use language that’s simply not true or accurate will never pass muster when squared with the First Amendment.
Ingrid Jacques is a columnist at Paste BN. Contact her at ijacques@usatoday.com or on X: @Ingrid_Jacques