Women’s sports advocates sue Colorado

An athletic apparel company that supports protections for women in sports is suing over a new Colorado law that would censor its advertising.

Colorado Gov. Jared Polis signed the Kelly Loving Act into law on May 16. The measure defines “deadnaming and misgendering” as discriminatory actions under the Colorado Anti-Discrimination Act. It also expands the definition of gender expression, already protected under CADA, to include a person’s “chosen name” and “how an individual chooses to be addressed.” The law then adds that Coloradans have a right to access “public accommodations and advertising” that is free of this “discrimination.”

The company XX-XY Athletics contends this law stifles its ability to carry out its mission to protect and promote female athletes by selling athletic gear. The brand, founded by national gymnastics champion Jennifer Sey in March 2024, often holds pop-up events and advertises online throughout the state.

XX-XY Athletics said that the law requires the company to avoid any statements or advertisements that refer to a person by his or her real sex and birth name if that person identifies as transgender.

But the company says it regularly publishes marketing content that falls under that criteria. For instance, the brand recently posted a video on X protesting a male athlete competing in a girls’ high school track event in Pennsylvania. The caption referred to the athlete by male pronouns and his birth name.

“The company believes that doing otherwise would perpetuate a lie (that sex can be changed) and defeat its mission (to show the injustice of males competing in women’s sports),” the lawsuit stated. “Compelling XX-XY Athletics to say otherwise would defeat its message.”

Under the new law, the business could face cease-and-desist orders, investigations, hearings, and civil and criminal penalties for this and similar social media posts. XX-XY Athletics could also face fines of up to $3,500 for each violation of the law, according to its lawsuit.

Colorado’s law both compels and censors speech, said Suzanne Beecher, an attorney with Alliance Defending Freedom, which represents XX-XY Athletics. “The government is forcing people to say the government’s message rather than to express the message that they want to communicate,” she said. “That’s a violation of free speech and is unconstitutional.”

Beecher added that this is not the first time Colorado has tried to censor speech through CADA. In a landmark case in 2018, the Supreme Court sided with Masterpiece Cakeshop baker Jack Phillips after the state targeted him for declining to design a wedding cake for a same-sex wedding.

Then in 2023, the Supreme Court ruled in favor of Lorie Smith, a graphic artist who created wedding websites. The justices found that Smith’s designs are protected speech and that the state could not compel her to express messages that violated her beliefs.

Though the state lost in both these cases, “Colorado is once again trying to censor the speech of its citizens and instead force them to speak the state’s message,” said Beecher.

The new law affects more than just business advertisements. The Kelly Loving Act requires school policies to be “inclusive of all reasons” that a student changes their name, adding that schools must allow students to choose from any variation contained in dress code policies.

Because the law is so “far-reaching,” other organizations have already sued the state, Beecher said, adding that she wouldn’t be surprised if other groups file more lawsuits.

The advocacy group Defending Education filed a lawsuit two weeks ago against this law. The Colorado Parent Advocacy Network, Protect Kids Colorado, a health group called Do No Harm, and a dermatologist joined the suit, arguing that the law suppresses their abilities to express traditional beliefs on sex and gender.

“They don’t want to be forced to lie in accordance with the government’s desire to make everyone believe the same thing about gender ideology,” said Sarah Parshall Perry, the vice president at the advocacy group Defending Education. “Colorado is not getting the message on constitutional law. It’s not getting the message on freedom of belief. We are hopeful that our lawsuit will finally establish that.”

Before Polis signed the law, Southern Baptist leaders called the legislation “nothing short of an attack on human dignity, people of faith, and anyone who questions the ever-changing cultural definitions of sexuality.”

A county commissioner and self-proclaimed “proud member of the LGBT community” also criticized the law for its negative effect on constitutional rights.

“I recognize the importance of safeguarding the rights and dignity of all individuals,” Douglas County Commissioner Abe Laydon said in a statement. “However, it is essential to balance these protections with the preservation of parent rights, religious freedom, and freedom of speech.”

While no other states have laws that target speech this aggressively, Parshall Perry said proving the Kelly Loving Act violates the Constitution would prevent other states from passing similar laws.

“A ruling for our organization ... would send a very strong message to other states who are considering legislation of precisely this type,” Parshall Perry said. “It’s time for a federal court to finally lay down the yardstick.”