DENVER – Alliance Defending Freedom attorneys representing a Colorado athletic apparel company and a Christian bookstore filed their opening briefs with the U.S. Court of Appeals for the 10th Circuit Monday. The appeal comes after a district court denied the request of XX-XY Athletics and Born Again Used Books to temporarily halt enforcement of a Colorado law that restricts their ability to speak truthfully about the biological differences between men and women.
“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, director of the ADF Center for Conscience Initiatives. “As the U.S. Supreme Court recently reaffirmed when it ruled against another Colorado law in Chiles v. Salazar, the government shouldn’t be able to censor speech or force people to speak views they disagree with. We are asking the appeals court to protect the ability of Coloradans to openly express their beliefs on a hotly debated issue.”
“Jennifer Sey built XX-XY Athletics around these core beliefs: men are men, women are women, and women deserve sports of their own,” the brief filed in XX-XY Athletics v. Sullivan states. “To carry that message, the company names male athletes who compete against women, calls them men, and uses those males’ biologically accurate pronouns—on its website, in its ads, and nearly every day on social media. For XX-XY Athletics, the mode of address is the message. Colorado wants that to stop…. The threat XX-XY Athletics faces is real, credible, and imminent.”
The brief filed in Born Again Used Books v. Sullivan notes that the bookstore “cannot call a man a woman. And it cannot call a woman a man. Its Christian owners believe God made every person male or female. So when employees greet customers or hand them off to coworkers, they use titles, pronouns, and other biologically correct terms to endorse God’s design for human sexuality. Colorado now forbids that message… Born Again sued in hopes of speaking freely again. It ask[s] only to keep speaking as it always has, without fear of punishment, while the case proceeds.”
In the Chiles decision, the Supreme Court explained that “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
Last year, the Colorado governor signed HB 25-1312 into law, amending the Colorado Anti-Discrimination Act to define “gender expression” to include a person’s “chosen name” and “how an individual chooses to be addressed.” The law, therefore, requires businesses like XX-XY Athletics and Born Again Used Books to use biologically inaccurate language in their customer interactions, advertisements, and other publications, so the two companies filed suit.
XX-XY Athletics is the only athletic brand to stand up for women’s sports. The brand frequently refers to male athletes and male customers as male—even if they identify as female—putting the company at risk of violating Colorado’s law and facing cease-and-desist orders, expensive investigations, hearings, and civil and criminal penalties. Katherine C. Yarger of Lehotsky Keller Cohn LLC is co-counsel with ADF in the XX-XY Athletics case.
Born Again Used Books, a family-owned bookstore in Colorado Springs, happily sells its products to anyone, but Colorado now compels the bookstore to speak using pronouns and titles based on a person’s preferred gender expression—thereby requiring the store to prioritize a person’s professed identity over biological reality. That requirement violates the Christian bookstore’s beliefs and the First Amendment.
Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.
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