Company supporting women’s sports sues Colorado for stifling free speech with ‘gender expression’ requirements

XX-XY Athletics sports apparel company has filed a lawsuit to nullify Colorado’s transgender anti-discrimination law for its infringement on free speech.

In May, Colorado updated its anti-discrimination code to protect “gender expression.” The law classifies intentional “deadnaming” — misgendering — of a transgender-identifying individual as a form of discrimination.

“Gender expression means an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, behavior, chosen name, and how the individual chooses to be addressed,” the update read.

It also requires schools to “be inclusive of all reasons that a student might adopt a name that differs from the student’s legal name” and said people could change the sex designation on their government identification three times before having to appeal to a court. 

Now, XX-XY Athletics is suing Colorado for allegedly violating the company’s constitutional rights. 

Founded by Jennifer Sey, a former gymnastics champion, author and filmmaker, XX-XY Athletics supports women’s sports and single-sex spaces. In its marketing and customer interactions, the business refers to people by their biologically accurate pronouns and to transgender athletes by their original names. 

In the lawsuit filed May 27, Sey argues Colorado wants to stifle the Denver-based company’s free speech by making it “illegal for public accommodations like XX-XY Athletics, in their advertising, customer interactions, and elsewhere, to refer to transgender-identifying individuals with their given names or with biologically accurate language.” 

In short, the plaintiff “can no longer call men, men.”  

The state gives “unbridled discretion to enforce CADA [Colorado Anti-Discrimination Act] against businesses like XX-XY Athletics based on their viewpoint,” the complaint explains. 

Under the law, XX-XY Athletics could face thousands of dollars in fines or even charges of criminal misdemeanor. 

Colorado has a history of stifling free speech in favor of LGBT causes. 

Jack Phillips, an artisan cake maker, was forced to appeal to the Supreme Court when he refused to make custom cakes for same-sex weddings. Lorie Smith of 303 Creative fought a similar battle for her wedding website design company. 

In both cases, Colorado tried to use CADA as a defense in the state’s prosecution of both professionals. 

As with Phillips and Smith, Colorado is violating the First and Fourteenth Amendment with its law, XX-XY Athletics argues. 

“Colorado continues to place itself on the wrong side of the law by forcing Coloradans to speak against their conscience,” said ADF Senior Counsel Hal Frampton. “XX-XY Athletics believes that women deserve to compete fairly and holds to the commonsense view that biological differences exist between men and women, but Colorado’s law places them at risk for speaking the truth.  

“We are urging the court to protect the ability of Coloradans to openly express their beliefs on this hotly debated issue.”