Many Colorado legislators show a shocking disregard for the Bill of Rights and the Fourteenth Amendment, despite having sworn an oath to uphold those key legal protections of our rights.

Examples: A housing bill treats religious nonprofits differently from nonreligious ones, in violation of the equal protection and establishment clauses. An open-records bill gives preferential treatment to journalists over other citizens, another violation of equal protection. A semiautomatic gun bill denies due process to people arbitrarily denied their right to purchase various common guns, also a violation of the Second Amendment.

The latest example comes with House Bill 1312, which embraces censorship in the name of protecting transgender people. Censorship in any form inherently violates the First Amendment and people’s rights to freedom of speech.

Maybe you think I’m being hyperbolic. Censorship? Really? Surely not! Here is part of the language of the bill, as introduced on March 28 (a House Judiciary amendment did not affect this part):

“It is a discriminatory practice and unlawful to, with specific intent to discriminate, publish materials that deadname or misgender an individual.”

Yes, this bit must be read in the context of the definitions provided by the bill and of the surrounding statutes in which it is placed. But I have read those other provisions, and the text in question is what it seems to be: straight-up censorship. It applies to newspapers, political flyers, books, blogs, and so on.

Obviously if this language passes and becomes Colorado law, the courts will throw it out, because it egregiously violates the First Amendment. Apparently the legislators who drafted and promoted the legislation don’t care at all about how much money they force Colorado taxpayers to spend defending flawed legislation or how much hassle and expense people have to undergo to challenge it.

This is not the right way to legislate. Legislators should not just throw up whatever language they want to the courts to see what sticks. Rather, legislators, no less than judges, have a legal and moral responsibility to ensure that the bills they pass comport with the state and federal constitutions, with particular emphasis on those hard-won sections protecting our basic rights.

A-holes have rights too

I am put in the unfortunate position here of having to defend the rights of a-holes. If you publish material deadnaming or misgendering an individual, with an intent to discriminate (as opposed to, say, an intent to discuss an individual’s previous criminal record), then you are an a-hole.

But, in a free society, a-holes have rights too. Indeed, if a-holes don’t have rights, then none of us has rights. Injustice anywhere, even if directed at a-holes, is a threat to justice everywhere. And censoring a-holes is unjust.

The publisher of a newspaper or a blog (or whatever) has the legal right to deadname and misgender people just as he has the right to call black people the “n-word” or Jews the “k-word.” In a free society, in many contexts people have a legal right to do what is morally wrong. Nazis get to publish newsletters and hold parades. We just have to accept that if we want to live in a free society.

A government that takes it upon itself to outlaw all forms of immorality, necessarily as determined by government agents, becomes totalitarian. A government that acts to ban immorality, except in carefully defined cases of genuine rights violations, acts immorally.

Ah, but deadnaming or misgendering someone, even in the context of something like a newsletter, is “violence,” some will say (and some did say at the judiciary hearing). That’s totally wrong. I’m not denying that intentionally misgendering someone or calling someone the “n-word,” even behind their backs, can cause a lot of emotional pain. But if we put ourselves on the path of equating expressions with physical violence, we end with government acting as arbiter of offensive speech.

So, for example, if I say “There is no God,” something that I sincerely believe, that statement will offend billions of people on Earth who believe, not only that there is a God, but that denying there is a God offends God and God’s followers. If government can forcibly prevent someone from denying a person’s chosen gender, government can with even more urgency forcibly prevent me from denying God’s existence. (Indeed, in previous ages, ruling authorities would have murdered me for denying God’s existence.) The fact that I’m right is immaterial if the people running the government think I’m wrong and treat people taking offense the same as them suffering violence.

The matter of public accommodations

If a restaurant owner posted a sign that says, “No blacks allowed,” that obviously would violate the anti-discrimination provisions of public-accommodation laws. The same goes for a sign that says, “No transgender people allowed.”

Unless you want to jettison the public-accommodation laws, you have to concede that in some contexts government may act against discrimination against transgender people.

Now let’s say that, instead of posting the sign, the restaurant owner let black people in the door and seated them, but then proceeded to call them the “n-word,” with the obvious intention of creating a hostile environment for them. Would that also violate the public-accommodation laws? Obviously. So the same goes for deadnaming or misgendering transgender people in this context.

The bit of HB 1312 calling for censorship is added to the statutes regarding public accommodations. The problem is that the language itself applies universally (including to blogs and books), not just to places of public accommodation. This is censorship.

The sponsors are free to amend the bill to clarify that it pertains only to deadnaming and misgendering someone in the context of a business (or other organization) providing public accommodations.

Other parts of the bill

I agree with critics who say that HB 1312 tries to do too much and should be broken into smaller pieces. Part of the problem with the censorship provision is it seems tacked on as an afterthought to a much broader effort.

Part of the bill pertains to child custody. Existing statutes define “coercive control” as “a pattern of threatening, humiliating, or intimidating actions, including assaults or other abuse, that is used to harm, punish, or frighten an individual.” The bill adds deadnaming and misgendering someone as types of “coercive control,” and it directs courts to consider deadnaming and misgendering when deciding matters of child custody.

I don’t know what to think about this. I can imagine a parent being quite mean about refusing to call a child by the child’s chosen name and gender pronouns. I also can imagine a parent having sincere and benevolent reservations about a child’s claims to be transgender. I guess what I’d say is courts generally should defer to the child as much as feasible. It should matter if the child regards a parent’s behavior as supportive and loving or mean and abusive.

Another part of the bill says Colorado will not cooperate with another state that tries to remove a child on the basis of the child receiving gender-affirming health care. That seems fine to me.

Yet another part of the bill requires schools to have a general policy about how they inform parents about a child’s requested name change. A school couldn’t single out transgender kids. And schools couldn’t impose gender-specific dress codes. Again this seems fine.

Another part of the bill, amended out in committee, asked state agencies to consistently use someone’s chosen name. This seems like too much. A person is free to change nicknames every week, but should state agencies really be required to track that? I say state agencies should use a person’s legal name, and if someone wants to change their legal name as part of their gender transition, great.

I applaud the sponsors’ intent to better-protect transgender people in Colorado. But imposing censorship is definitely not the right way to accomplish that.