No one questions Colorado’s interest in ensuring access to public spaces for its citizens. However, the state has reiterated its stance that its anti-discrimination laws are not constrained by the First Amendment of the Constitution.
In 2023, the Supreme Court addressed this issue in 303 Creative v. Elenis, ruling that Colorado could not compel a website designer to express messages against her beliefs under its anti-discrimination law. Despite this, Colorado continues to pursue measures against politically unfavorable speech.
The Colorado Antidiscrimination Act (CADA) mandates equal access to public accommodations without discrimination based on disability, race, creed, color, sex, sexual orientation, marital status, family status, religion, national origin, ancestry, gender identity or expression. Public accommodations are broadly defined as any place offering sales or services to the public.
A recent amendment—House Bill 25-1312—extends beyond regulating access and includes speech within these spaces. The new law revises “gender expression,” requiring operators of public accommodations to use individuals’ chosen names or pronouns even if it conflicts with their personal beliefs about sex and gender.
Additionally, CADA punishes anyone who publishes statements making someone feel unwelcome based on protected categories like gender expression. These prohibitions lack clear definitions for key terms and leave interpretations up to Colorado’s Civil Rights Commission. Violating HB 25-1312 may result in mediation requirements and fines up to $5,000. It also opens avenues for private lawsuits against speakers.
This prompted Defending Education and other organizations—including Do No Harm and two parental rights groups—to sue Colorado. They argue that these provisions violate the First and Fourteenth Amendments by compelling speech and discriminating based on content while being overly broad and vague.
They cite precedents like Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston where states were reminded they cannot interfere with speech merely to promote approved messages or discourage disfavored ones.
The Supreme Court has consistently upheld free speech rights even when faced with anti-discrimination laws aimed at suppressing offensive speech as seen in cases such as Boy Scouts v. Dale.
Riley v. National Federation of the Blind highlighted that the First Amendment protects an individual’s right both to speak freely and decide what not to say—a principle Defending Education believes must be upheld.
