The courtroom is an expensive classroom.
Colorado officials have been schooled not once but multiple times by U.S. Supreme Court justices on the First Amendment. Nevertheless, they continue to forget the lesson that government cannot censor, compel or coerce speech. Colorado is back in court once again. Luckily, it is not too late for the General Assembly to correct the violation before taxpayers have to pay for more tutoring.
Thanks , Coloradans cannot use biologically accurate pronouns or titles in their interactions with their colleagues at work. If they do not address customers and colleagues by their preferred pronouns, the business could run afoul of the Colorado Anti-Discrimination Act as amended. To protect First Amendment rights, XX-XY Athletics, an athletic apparel company, and Born Again Used Books sued in federal court.
While XX-XY Athletics v. Sullivan and Born Again Used Books v. Sullivan make their way through the courts, the legislature can easily amend the law to comport with the Constitution while it is still in session.
Surely, legislators knew this was going to happen.
In 2023, the High Court ruled 6-3 in 303 Creative v. Elenis that public accommodation laws like Colorado’s anti-discrimination act cannot be used to compel speech. The case involved a website designer who said she would refuse to design websites for same-sex weddings. The Court ruled that her wedding website design was speech and the designer could not be forced by the government to write messages with which she disagrees.
The precedent set in that case went further to protect creative entrepreneurs than even the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the court ruled in favor of baker Jack Phillips because they said Colorado officials had demonstrated religious hostility toward Phillips. The court did not rule either way on the First Amendment. Phillips had been sued for refusing to make a cake for a same-sex wedding, and the Civil Rights Commission had ruled against Phillips.
This year, the Court once again affirmed First Amendment rights in Chiles v. Salazar. In an 8-1 decision, justices ruled that the government cannot censor or compel speech in counseling sessions. When working with clients under the age of 18 suffering from gender dysphoria, Colorado law prohibited counselors from saying anything that might help the client accept his or her biological sex. The law demanded that counselors affirm a client抖阴ap alternate gender identity or stay silent. The 2026 Court decision nullified such unconstitutional viewpoint-based restrictions in Colorado and some 20 other states.
While government officials are free to believe that sex or gender is a changeable attribute, they cannot foist their opinion on others under penalty of law. Americans who deem sex and gender biologically determined and immutable have the right to express that view in private and public, even if it means refusing services. This includes the right to use pronouns and titles that correspond with biological sex even if it causes employment discrimination.
Appeals courts have decided in favor of such free speech in Meriwether v. The Trustees of Shawnee State University, Kluge v. Brownsburg Community School Corporation, and Parents Defending Education v. Olentangy Local School District, et al.
Attorneys for the clothing and book store owners have appealed to the 10th Circuit and, based on these precedents, are likely to succeed. If the legislature amends the Colorado Anti-discrimination Act to be consistent with constitutional rights, litigants can drop the suit, and no additional funds need be expended to fight an unwinnable battle against the First Amendment.
In a pluralistic society, there are a variety of opinions about the nature of sex, gender, and marriage and everyone has the right to express their opinion in speech, writing, and artistic creation. No one can use the power of government to silence or force fellow Americans to profess what they do not consider to be true.
One early free speech decision captures the lesson: 鈥淚f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,鈥� wrote Supreme Court Justice Robert H. Jackson for the majority in the 1943 case West Virginia State Board of Education v. Barnette.
Krista Kafer is a Sunday Denver Post columnist.
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