Our shopping is sometimes centered around ideological concepts rather than tangible items. People across the political spectrum like to adorn themselves with messages expressing their views on issues at the center of societal discourse, from “Don’t Tread on Me” to “Black Lives Matter.”
So, what would happen if a state passed a law banning corporations from using specific words in their advertising or forced them to use different words? What kind of message would “Black Lives Matter” be if they couldn’t say “Black”? How would marketers sell bug spray if a state forced a company to call “insects” “visitors”?
As ridiculous as this may sound, a new Colorado law is essentially doing that.
Jennifer Sey is a national gymnastics champion, best-selling author, award-winning documentary filmmaker, and former chief marketing officer and brand president for Levi Strauss. As a female athlete, she quickly took note of the young women who are being forced to compete against male athletes who identify as female, and she joined millions of others expressing outrage that women and girls are unfairly losing competitions and placements to men who have natural biological advantages.
As more men received awards and accolades that should have gone to deserving girls, Jennifer noticed that legacy athletic brands refused to stand up for women’s sports. In March 2024, during Women’s History Month, she launched XX-XY Athletics to give these women a voice and stand in the gap to deliver a product with a message: keep women’s sports for women.
XX-XY Athletics is based in Denver, and they often conduct pop-up sales events in Colorado as well as interact online with customers across the country. Because of XX-XY Athletics’ stance on common-sense biology and women’s sports, they refer to male athletes and customers as men. And that’s where Colorado’s new law comes in.
On May 16, Democratic Gov. Jared Polis signed HB25-1312, which is a policy that amends the Colorado Anti-Discrimination Act to define “gender expression” to include “chosen name” and “how an individual chooses to be addressed.” Now, if a male chooses to identify as a female, XX-XY Athletics risks breaking the state law if it refers to the male as a male in its advertising or at its sales booth.
For example, in one campaign protesting a male athlete dominating girls’ high-school track in Pennsylvania, XX-XY Athletics explained, “Sean ‘Luce’ Allen is having a track season to remember. Meanwhile, girls are receiving a message they’ll never forget. When boys run girls’ track, they win. And girls lose.” Under Colorado’s law, XX-XY would be forced to change its message to something like this: “Luce Allen is having a track season to remember. Meanwhile, girls are receiving a message they’ll never forget. When girls run girls’ track, they win. And girls lose.” Huh?
Of course, advertising copy that absurd would never be worth considering, but that’s the point. Colorado’s bill censors free speech and is unconstitutional.
Unfortunately, this is par for the course in a state that has quadrupled down on radical gender ideology. Colorado already bans counselors from helping clients achieve comfort with their biological sex, and it does this while allowing counselors to encourage teenage boys and girls to live as the opposite sex. This sparked a lawsuit that is set for oral arguments at the U.S. Supreme Court next term. It’s not any stretch of the imagination to think that Colorado will move beyond violating the speech rights of licensed counselors and apparel companies and target any individual in the state who dares to speak out in support of biological reality.
Because of this affront to the First Amendment, Jennifer Sey and XX-XY Athletics filed a lawsuit against the state with the help of Alliance Defending Freedom, where I serve as legal counsel. Young women demand to be heard, and Jennifer Sey and XX-XY Athletics want to amplify their voices and rally around a cause that is overwhelmingly supported by Americans across the political spectrum.
Women and girls deserve better, and XX-XY Athletics is providing a desperately needed platform to get that message across. Colorado can’t suspend the First Amendment just because it disagrees on this hotly debated issue.
Suzanne Beecher is legal counsel with Alliance Defending Freedom (@ADFLegal).
