Defending Education Files a Motion for Preliminary Injunction with District Court in Defending Education et al. v. Sullivan et al.

Introduction

Anti-discrimination laws are important. Coloradans have a right to access public spaces, and the State of Colorado has a strong interest in protecting that right. Indeed, like many States, Colorado has long guaranteed that all persons shall have “full and equal” access to places of public accommodation.
Colo. Rev. Stat. §24-34-601(2)(a). That law, the Colorado Anti-Discrimination Act, ensures that individuals are not denied access or goods based on their membership in a protected category.

But last Friday, Colorado adopted a new law—House Bill 25-1312—for an entirely different purpose. Unlike the Anti-Discrimination Act’s existing prescriptions, which regulate access to public accommodations, the purpose of H.B. 25-1312 is to regulate speech. Specifically, the bill revises the definition of “gender expression,” a protected category in Colorado law, and makes it unlawful for anyone who operates in a place of public accommodation to decline to use someone’s “chosen name” or other terms by which they “choos[e] to be addressed,” like preferred pronouns. See H.B. 25-1312 §8 (Compl. Ex. A).

Colorado’s law as amended by H.B. 25-1312 is plainly unconstitutional. To be sure, States may prohibit acts of discrimination—denying access or service—but they may not regulate, let alone punish, the speech of those who operate in a place of public accommodation. See Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557, 579 (1995) (States are “not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.”); Telescope Media Grp. v. Lucero, 936 F.3d 740, 755 (8th Cir. 2019) (“[A]ntidiscrimination laws, as critically important as they are, must yield to the Constitution.”). Yet Colorado law does exactly that. The new “gender expression” and “chosen name” definitions—along with Colorado’s existing ban on published statements and communications that make individuals feel “unwelcome” in places of public accommodation—violate the First and Fourteenth Amendments. They compel speech, they regulate based on content and viewpoint, they are overbroad, and they are impermissibly vague.

These laws have real-world consequences for many Coloradans, including Plaintiffs and their members. Lori Gimelshteyn and Erin Lee (who are members of Defending Education) and their respective organizations, CPAN and PKC, frequently host and attend events in places of public accommodation to express their views about the dangers of gender ideology. At those events and in their public statements, they want to use biologically accurate pronouns and names—what proponents of H.B. 25-1312 call “deadnaming” and “misgendering”—because they believe sex is fixed at birth and immutable. But Colorado law prohibits them from doing so. Similarly, Dr. Travis Morrell, a Colorado physician who is a member of Do No Harm, wants to use biologically accurate names and pronouns with his patients because he also believes sex is immutable and because he believes proper medical care requires recognizing biological realities. But because of Colorado law, he cannot use his desired speech. These restrictions on their speech are plainly unconstitutional.

Plaintiffs seek a preliminary injunction to protect their right to speak freely and to not be forced to parrot the State’s views on matters of sex and gender. Plaintiffs are entitled to a preliminary injunction because they are likely to succeed on the merits, they will suffer irreparable harm without an injunction, and the balance of harms and public interest weigh in their favor. This Court should grant the motion and enjoin Defendants from enforcing the challenged provisions.

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