Bookstore takes on Colorado pronoun mandate

At Born Again Used Books in Colorado Springs, Colo., store owners Eric and Sara Smith stock the shelves with classic literature and books that reflect their Christian convictions. But the couple says a new state law might require them to violate those convictions by addressing customers according to names or pronouns that do not match their sex.

“Our desire in owning the bookstore has been to be a blessing to the community,” said Sara Smith. “So having the state come in and tell us how we can bless people … makes it challenging to do business as we would like.”

In July, the Smiths sued Colorado over the Kelly Loving Act, which Gov. Jared Polis signed into law on May 16. The state already protects against discrimination on the basis of gender identity and sexual orientation, but the new measure makes it a crime not to use a person’s preferred name and pronouns. Alliance Defending Freedom filed the lawsuit on behalf of the Smiths, arguing that the legislation infringes on the couple’s freedom of speech and “requires this Christian bookstore to abandon its core religious beliefs.” Two other lawsuits against the law are already pending.

The Colorado Anti-Discrimination Act or CADA, already protected individuals from discrimination on the basis of their gender identity before legislators passed the Kelly Loving Act. CADA defines “places of public accommodation” as “any place of business engaged in any sales to the public,” not including places of worship like churches or mosques. Under the law, businesses are prohibited from distributing any communication, mailed or electronic, that would indicate that a customer is “unwelcome, objectionable, unacceptable, or undesirable” because of characteristics including their “sexual orientation, gender identity, [or] gender expression.”

But the Kelly Loving Act takes protections for gender identity a step further by defining discrimination “to include how an individual prefers to be addressed and an individual’s chosen name,” said Mercer Martin, an ADF attorney. The act’s language amends CADA to protect “gender expression” as expressed through a person’s “chosen name” and “how the individual chooses to be addressed,” according to the text of the law.

Under the Kelly Loving Act, failing to include a customer’s preferred name or pronouns on any form of communication is tantamount to treating that person as “unwelcome.”

“This law is so expansive that it touches every place of public accommodation,” said Martin.

Twenty other states have laws that include gender identity or sexual orientation as protected classes in anti-discrimination rules concerning housing, employment, and public accommodation, per Freedom for All Americans. “But this is one of the most blatant examples of a state making it very clear that they are forcing businesses to use inaccurate pronouns,” said Martin.

So far, the new legislation has provoked three lawsuits. The first challenge came on May 19 from five plaintiffs, including the Colorado Parent Advocacy Network and Defending Education.

The following week, sports apparel company XX-XY Athletics also filed suit, arguing that the act compels it to advertise in a way that conflicts with company values.

XX-XY Athletics sells clothing designed for biological males and females, and company employees address customers and athletes based on biological pronouns, regardless of how that individual identifies. The online storefront’s headquarters are based in Denver, so the company risked breaking the new state law.

All three lawsuits, including the Smiths’, challenged Colorado preemptively, since the danger of violating the state’s anti-discrimination law now looms very near for business owners. Coloradans face fines of $10,000 for violating the Colorado Anti-Discrimination Act. “Any day an individual could come in and demand that Born Again Used Books use certain terminology,” said Martin. “If they refuse, they can be subject to complaints, investigations, fines, and there are even criminal penalties for some of these provisions.”

Martin hopes that, in these or future lawsuits, the courts will strike down the Kelly Loving Act. He said Supreme Court precedent is on the Smiths’ side, pointing to previous Supreme Court victories for cake baker Jack Phillips and wedding photographer Lorie Smith, both of whom hold Biblical beliefs about marriage.

Katy Roberts, policy manager for the Ethics and Religious Liberty Commission of the Southern Baptist Convention agreed. “The Supreme Court has ruled now twice against Colorado in this specific grounding, consistently holding that the government can’t force people to express messages that violate their conscience or their religious beliefs, specifically in the state of Colorado,” she said.

J. Chase Davis, a pastor at The Well Church in Boulder, Colo., said that until state law changes, Colorado Christians, like the Smiths and Jack Phillips, will have to keep taking a firm stance on biological reality. “I wouldn’t advocate for being needlessly offensive,” said Davis. “At the same time, it will cause offense to speak the truth.”

Davis believes that the Smiths’ commitment to address customers according to their religious convictions is consistent with their goal of using the bookstore as a ministry. “People will suggest that it’s compassionate to use pronouns or that if we don’t use pronouns, it’s going to get in the way of our gospel witness,” explained Davis. “Well, no one is going to have a good gospel witness if they’re lying to have a gospel witness.”

The Smiths said that, if the court rules in their favor, they plan to distribute their pronoun policy to their employees and post the policy on their company website, actions which the state law currently prohibits. Even if they win the lawsuit, the Smiths plan to continue serving all customers, regardless of their gender identity.

“We wanted to have a policy to just let people know where we’re coming from on this and where we stand,” said Eric Smith. “So people can make the choice whether they want to come in the store or not.”