Blue State Bill Targeting ‘Misgendering’ Could Be Barreling Toward Free Speech Fight, Legal Experts Say

A Colorado bill aiming to classify certain forms of public speech as discriminatory toward transgender-identifying people could hit a constitutional roadblock, legal experts told the Daily Caller News Foundation.

The Colorado House on April 6 passed HB25-1312, the “Kelly Loving Act,” which defines “misgendering” and “deadnaming” transgender people as “discriminatory acts” and would prohibit them “in places of public accommodation.” The bill would increase the scope of an “anti-discrimination” law that has repeatedly gotten the state into legal trouble over Christian business owners’ right to adhere to their religious beliefs.

“Courts across the country have held that the First Amendment protects the freedom not to endorse messages contrary to one’s core beliefs,” Gregory Baylor, senior counsel at Alliance Defending Freedom (ADF), told the DCNF. “The pending Colorado bill would violate legal protections of free speech and religious liberty.”

Colorado churches:

Urge and equip your congregation to oppose HB 25-1312––a radical gender ideology bill pending a vote in the CO State Senate––with this bulletin insert from the ERLC and Colorado Baptists:https://t.co/str5I52f8n

— ERLC (@ERLC) April 15, 2025

The ADF represented Colorado residents Jack Phillips, owner of Masterpiece Cakeshop, and Lorie Smith, owner of 303 Creative, in separate U.S. Supreme Court cases related to the Colorado Anti-Discrimination Act, the same law Democrats want to amend with the new speech restrictions.

Phillips, a Christian, was sued twice for refusing to make cakes promoting same-sex marriage and transgenderism as part of a 12-year spate of legal battles. The Supreme Court ruled in favor of Phillips in 2018. The court also upheld Smith’s First Amendment right to refuse to make graphic designs for a same-sex wedding in 2023.

Justices noted in the majority opinion for Smith’s case that the state applied the Colorado Anti-Discrimination Act “broadly to include almost every public-facing business in the State.” The newest proposed expansion of the law would similarly put speech restrictions on every business in the category of “public accommodations.”

The Democrat-backed bill defines “deadnaming” as “refer[ing] to an individual by their birth name rather than their chosen name,” while “misgendering” is to intentionally “disregard” someone’s stated gender by “using an honorific or pronoun” that contradicts it.

“Trans people deserve to be heard, respected and safe in Colorado — and the least we can do is show them the dignity and respect of being called by their chosen name,” Democratic Colorado State Rep. Rebekah Stewart told the DCNF. Stewart is a primary sponsor of HB25-1312, along with Democratic Colorado State Rep. Lorea García and Democratic Colorado State Sens. Faith Winter and Chris Kolker.

“The intention of our bill is to create an environment where trans people can live without fear of harassment and discrimination,” Stewart said. “With this legislation, Colorado will continue to protect the civil rights of all people in our state.”

García, Winter and Kolker did not respond to the DCNF’s requests for comment. Their bill is now headed to the Democrat-controlled Colorado Senate, and will go to Democratic Colorado Gov. Jared Polis’s desk if the Senate passes it. Polis has not said publicly whether he supports the bill, though he has previously signed other related transgender bills into law, Deseret News reported.

The legislation has also drawn backlash due to a section that would require judges to consider “deadnaming” and “misgendering” as abusive behavior in child custody cases. The Southern Baptist Convention said that the “radical” bill “would allow Colorado courts to use a parent’s biblical view of gender and sexuality as evidence against them” in a warning to local churches.

A constitutional law expert with the Foundation for Individual Rights and Expression (FIRE) also said that the Kelly Loving Act “poses serious First Amendment problems.”

“It’s not about actual denial of service to trans people. Instead, it targets ‘misgendering’ or ‘deadnaming’ when done with perceived intent to discriminate,” FIRE Director of Public Advocacy Aaron Terr said. “That blurs the line between discriminatory conduct and protected speech.”

“The state can prohibit businesses open to the public from refusing to serve people because of their race, sex, or other protected traits,” Terr told the DCNF. “But it cannot dictate what people say, or don’t say, as a condition of doing business.”

“Speech doesn’t lose First Amendment protection merely because some find it offensive or disrespectful,” Terr added.

Democratic Colorado State Rep. Yara Zokaie, however, said in a hearing in early April that the bill does not need to be discussed with “hate groups,” referring to the parental rights groups opposing the bill. 

“We don’t get to have a difference of opinion over somebody’s basic rights,” Zokaie said. “And recognizing that trans people exist is not a matter of political opinion.”

“A well-stakeholded bill does not need to be discussed with hate groups,” she said regarding the parental rights organizations. “We don’t ask someone passing civil rights legislation to go ask the KKK their opinion,” Zokaie added.

Critics argue that the Colorado bill sets up a similar free speech fight to those witnessed in the cases of Phillips and Smith.

“It appears that many Colorado legislators are ignoring the lessons learned from [Lorie Smith’s case], in which the U.S. Supreme Court struck down an illegal application of the very same law those legislators are trying to amend,” Baylor told the DCNF.

“No one should face punishment for declining to say something they believe is false,” Baylor said.