DENVER – Alliance Defending Freedom attorneys filed a federal lawsuit Tuesday on behalf of an athletic apparel company challenging a Colorado law restricting the company’s ability to speak truthfully about the biological differences between men and women. XX-XY Athletics is the only athletic brand to stand up for women’s sports.
On May 16, Colorado Gov. Jared Polis signed HB25-1312 into law, 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.” The law, therefore, requires businesses like XX-XY Athletics to address male customers who identify as female as females and also requires businesses to avoid any statement or advertisement that indicates customers are “unwelcome” based on their gender expression and chosen name. The brand frequently refers to male athletes and male customers as male—even if they identify as female—putting the company at risk of violating Colorado’s law and facing cease-and-desist orders, expensive investigations, hearings, and civil and criminal penalties.
“Colorado continues to place itself on the wrong side of the law by forcing Coloradans to speak against their conscience,” said ADF Senior Counsel Hal Frampton, director of the ADF Center for Conscience Initiatives. “XX-XY Athletics believes that women deserve to compete fairly and holds to the commonsense view that biological differences exist between men and women, but Colorado’s law places them at risk for speaking the truth. We are urging the court to protect the ability of Coloradans to openly express their beliefs on this hotly debated issue.”
In March 2024, during Women’s History Month, Jennifer Sey launched XX-XY Athletics in Denver with the mission of giving a voice to those advocating to protect women’s sports. Sey is a national gymnastics champion, best-selling author, award-winning documentary filmmaker, and former chief marketing officer and brand president for Levi Strauss. She knows that legacy athletic brands will not stand up for female athletes who are losing competitions to men. And she knows XX-XY Athletics can fill that gap by amplifying their voices and relentlessly advocating for women in sports. But Colorado’s law forces XX-XY Athletics to risk enforcement simply for speaking its core message and fundamental beliefs.
XX-XY Athletics regularly advertises online and conducts pop-up events in the state. In its advertising and customer interactions, XX-XY Athletics refers to male athletes and customers as male, but because Colorado’s law claims that Coloradans have a right to access public accommodations and advertising “free of discrimination” based on gender expression and chosen name, XX-XY Athletics’ free speech rights are under threat. The reason, ADF attorneys explain, is because the law allows any person who perceives discrimination to directly file a complaint in a district court, launching a burdensome investigation process that can lead to a cease-and-desist order. Violations of the law can also trigger fines up to $3,500 for each violation and even criminal penalties.
ADF attorneys filed XX-XY Athletics v. Sullivan with the U.S. District Court for the District of Colorado. Katherine Yarger of Lehotsky Keller Cohn LLP serves as co-counsel for XX-XY Athletics.
Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.
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