Southeastern Legal Foundation filed an amicus brief supporting XX-XY Athletics, Defending Education, and several other businesses who are challenging several Colorado laws that prohibit speech that merely causes a listener to feel “unwelcome” based on an individual’s sexual orientation, gender identity, or gender expression. Colorado’s latest ban on speech sets far too low a threshold to survive First Amendment scrutiny.
At the heart of the challenge are two of Colorado’s speech codes: the Unwelcome Clause and the Unwelcome Advertisement Clause. Both target pure speech, banning speech that makes members of the public feel “unwelcome” or “undesirable.” Whether a person violates the speech code is based entirely on how they make the listener feel. Business owners and their employees who hold traditional views on human sexuality and gender different from Colorado’s are therefore prohibited from speaking their deeply-held beliefs on matters of public concern.
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This is just the latest in Colorado’s dubious history of trampling First Amendment rights in its pursuit to shield members of the LGBTQ+ community from dissent regarding their lifestyle choices. In the last eight years, Colorado has become a three-time Supreme Court loser in three separate attempts to suppress or coerce speech in violation of the First Amendment. As SLF points out in its brief, “Colorado does not respect, and indeed tramples on, the free speech rights of those who disagree with its preferred message on LGBTQ+ matters.”
Consider a business owner who makes it his business’ policy not to use the chosen name or “preferred” pronouns of transgender-identifying individuals in speech about such third persons, or in making personalized items for such persons—for instance a baker who will not put the chosen name of a transgender-identifying individual on a cake. And imagine a medical professional holding the same policy when making notations in a medical chart about such persons. Or an attorney or business owner applying the same policy to invoices provided to such persons for services rendered.
A transgender-identifying individual very well could feel unwelcome because of these announced policies, opening any of these business owners up to not only being silenced, but to severe penalties. The First Amendment protects business owners from a government that seeks to command support for transgenderism and radical gender ideology.