Discussing “the sheer volume of bills that we pass every year” in the legislature, Rep. Rebekah Stewart (D-Jefferson County) said during a recent interview (starting at marker 28:25), “I do think that sometimes we try to rush things through and it ends up being messy legislation because we do that.”

Stewart continued, “It feels really urgent in the moment, and there are a lot of things that are really urgent, and, at the same time, I feel like nothing is so urgent that it’s worth passing bad legislation that we have to go back and fix. I think that that’s not a great mindset to get into, and so I wish that we didn’t always have such a deep sense of, well, it’s introduced, and we have the bill title this year, so we just have to pass something, if it’s just not working.”

Interesting then that the first thing to notice about House Bill 25-1312, the now-infamous transgender bill, of which Stewart is a primary sponsor, is that the May 6 Senate version of the bill looks almost nothing like the April 6 House version.  The bill now is in the hands of Governor Jared Polis.

A convoluted mess

Rather than admit the bill is just not working and go back to the drawing board to try to get it right for next year, the Senate saw fit to urgently “fix” nearly every line of the original bill. The result, predictably, is a convoluted mess that will require more “fixing” down the road. That did not prevent the legislature from lying about an emergency to invoke the “safety clause” to prevent voter review.

From the perspective of crafting clear, meaningful, necessary statutes, this bill makes little sense. But, as a social phenomenon, this bill is not fundamentally about the underlying statutes it enacts; it is a piece of performance art. It is largely about speaking out for transgender people in the face of anti-trans conservatives and the trans-hostile Trump administration. I agree that defending transgender people is a worthy cause, but this bill was not the right pathway.

As I pointed out when last I wrote about it, HB 1312 tries to do too much in one package. Its distinct elements should have been introduced separately so that the legislature and the public could give each part a serious hearing and lawmakers could vote each part up or down based on its merits. But a large-scale bill on many aspects of loosely related transgender issues makes a bigger statement, which is, after all, much of the point.

Let’s review what the revised bill does as compared with its earlier language.

Censorship provision cut

As I noted previously, to me the most concerning part of the bill as introduced was its provision imposing outright censorship.

Originally, March 28, and still by April 6, the bill stated, “It is a discriminatory practice and unlawful to, with specific intent to discriminate, publish materials that deadname or misgender an individual.”

Despite various claims by advocates of the bill and by major-media journalists who covered it (but I repeat myself), this language is not just limited to a public-accommodations setting. It explicitly refers to any sort of publishing. That’s censorship.

The difference between versions is that by April 6 the House had added an exception for any “public entity” when required by law to use an individual’s legal name. In other words, it would be legal, indeed mandatory, for government entities to deadname and misgender people in certain contexts, but illegal for private parties ever to do so, because some people are more equal than others.

Perhaps sensing the absolute unconstitutional disaster of this language, the Senate jettisoned it.

Public accommodations laws

The May 6 version of the bill aims squarely to reform the public-accommodations laws to apply to employment, housing, and businesses open to the public.

Existing statutory language protecting “gender expression” is expanded to include a person’s “chosen name and how the individual chooses to be addressed.” This is an indirect reference to pronouns. So the idea here is that, in a public-accommodations context, deadnaming someone (e.g., calling someone “Joe,” as they used to be called, when the person now prefers to be called “Sue”) or misgendering someone (referring to Sue as “he” or “Mr.” or the like) could be considered a discriminatory practice.

But this language is intentionally slippery. As revised, HB 1312 allows any chosen name if it “does not contain offensive language and the individual is not requesting the name for frivolous purposes.” Call it the “Jon Caldara exception.” You may recall that Caldara (head of Independence Institute, which publishes Complete Colorado) once suggested that students invited to change their names might choose something like “I.M.A. Wiener” or “Homer Sexual.” Or we might get something else crazy like a candidate for public office calling himself “Dave ‘Let’s Go Brandon’ Williams.”

There’s just one little tiny problem with the bill’s new language: Who gets to interpret the inherently subjective and largely arbitrary terms “offensive” and “frivolous”? Apparently the same Civil Rights Commission that has gotten itself in hot water with the Supreme Court for its heavy-handed legal applications. What could go wrong?

Indeed, some people regard any suggestion that a biological male is a woman to be offensive and frivolous. Obviously the Civil Rights Commission would disagree. In practice, then, HB 1312 is an open invitation to treat people differently based on their religious and ideological viewpoints.

The problem of interpretation is broader. To take an extreme example, for a time Prince changed his stage name to an unpronounceable symbol. Was that “frivolous”? You tell me. When people still called him “Prince” or “the artist formerly known as Prince,” was that “deadnaming”? Again, you tell me.

I’m not saying these sorts of edge cases would be the norm. Usually, we’re talking about something like the case of “Joe” to “Sue.” But the law needs to be written to apply generally, not just to the typical cases.

“How the individual chooses to be addressed” also is quite broad. What if I want to be known as “Ari ‘King of the World’ Armstrong”? Are people obliged to call me that in a public setting, or would my request be “frivolous”? What if I wish to be called “Pastor Ari Armstrong” or “Ari a Man Saved by Jesus Armstrong”? This quickly could get into some tricky waters.

Not only is the revised bill not “Caldara proof,” it is practically an open invitation for critics and pranksters to toy with Colorado’s civil rights laws. That seems bad.

Rejecting transgender claims

I have tried my best to convince certain friends of mine that some people genuinely and authentically are transgender. A couple years ago I wrote up a reply to Richard Dawkins outlining my position. I think my position is fairly straightforward and reasonable, but nevertheless I have failed to convince these friends.

I am willing to agree with progressives that people who are “trans-exclusionary,” who deny that an authentic transgender identity is possible and who treat claims to be transgender as some sort of delusion or mental illness, are falling into a sort of bigotry. I also think that in a lot of cases anti-trans activism carries with it bigotry against gay people and deep misogyny (yes, I know about the counter-claims).

But I also have to look out at the world around me and concede that a lot of people just flat-out disagree with me. As much as I think that they’re wrong, they also think that I’m wrong.

Here is my serious question for the Democrats who supported HB 1312: Do you really think it’s a good idea to force transgendered language onto the public when a substantial number of people think the very notion is absurd?

I don’t want to take Rep. Scott Bottoms as representative of public opinion. To be blunt, I think Bottoms is a disgrace to the legislature. Yet it remains the case that Bottoms was elected to the legislature, he’s the pastor of a church, he’s running for governor, and he expresses views that quite a few others share.

So I do want to consider Bottoms’ April 23 remarks on X. Bottoms first complains that “men” (transgender women) used the women’s bathroom in the state capitol building (he does not mention any actual harm this caused). He then asserts, not entirely without cause, that HB 1312 as originally drafted “would take children away from parents” who do not confirm a transgender identity (the language in question subsequently was removed). Bottoms then hysterically describes advocacy of transgender and queer people as stemming from “a Marxist ideology to crush and destroy” (ChatGPT actually did a pretty good job responding). Finally, Bottoms complains that legislative leadership gaveled him down for deadnaming and misgendering people.

Do we really need to try to force Scott Bottoms and people like him to call other people by their chosen names and pronouns in the relevant contexts?

The restaurant patron example

I’ve used the example before of a restaurant. Let’s say a transgender woman walks into a restaurant and asks for a table. Let’s further say that the restaurant owner knows the person is transgender and knows the person’s prior name. If the owner went out of his way to call the transgender woman “Mr.” and “Joe” instead of “Ms.” and “Sue,”and made a stink about it, that really would be discriminatory, comparable to emphasizing the color of a patron’s skin to make the person uncomfortable.

But I think the legislature is going too far toward potentially requiring the use of a person’s chosen name and pronouns. The compromise I propose is to give people such as Bottoms a way to use nongendered language instead.

In the case of legislators, we already have an easy alternative. Members of the House typically are called “Representative So-and-so,” and members of the Senate typically are called “Senator,” regardless of gender. Why can’t we do something comparable in a restaurant setting? Rather than use “Mr.” or “Mrs.” or “Sue Smith,” the restaurant owner could instead call someone something like “Patron Smith” or just “Smith.” Wouldn’t that be good enough?

Misgendering someone is not entirely like, say, calling someone the “N-word.” In the latter case, the person knows full well the “race” or ethnicity of the person in question yet chooses an intentionally demeaning label. But some people, however mistaken, sincerely believe that a transgender identity is not even a real thing. They imagine that calling a biological male “she” is akin to calling a white woman from Boulder the “Queen of Egypt.” They imagine that they are being put in the position of declaring that there are five lights when there are four.

I think trans-exclusionary people are wrong. But, look, people have a right to be wrong in important ways. There really is an important ideological dispute at the base of the controversy. So I think the legislature should be very wary about trying to enforce certain modes of speech in public. To put the matter bluntly, we don’t need the Thought Police.

Other changes to the bill

The April 6 version of the bill expended the meaning of “coercive control” in the context of custody disputes to include “deadnaming or misgendering.” Although I do think that some parents can treat their transgender kids cruelly, I also think that some parents approach their child’s claim to be transgender with loving skepticism. The language was stripped from the May 6 version of the bill.

The April 6 version further protected Colorado parents from losing custody of their children, based on the policies of other states, when the Colorado parent agreed to gender-affirming health care for a child. That language was removed. New language was added for May 6 confirming “freedom of choice . . . related to safely seeking health-care services,” including gender-affirming care.

The May 6 version has sections on name changes pertaining to marriage and drivers’ licenses that are not in the April 6 version.

I again suggest that a bill that went through this many changes so late in the legislative session of necessity feels rushed and sloppy.

Public school provision stays

The only respect in which the May 6 version of the bill is substantially the same as the April 6 version is in its handling of public school policy. Basically the bill says that schools must adopt a standard policy with respect to any “name that differs from the student’s legal name.”

And the bill says, “The dress code policy must allow each student to choose from any of the options provided in the dress code policy.” So a transgender girl (or a boy) must be allowed to wear a dress, if the school lists a dress in its dress code.

I don’t have any problem with any of this. The public schools are supposed to be for everyone. Even if you think that a transgender girl is “really” a boy, how does it hurt anyone for the child to wear a dress rather than pants? The idea that certain clothing styles are gendered always has been ridiculous anyway.

But the legislature should have run the public-school provisions as a separate bill, not as part of a huge package with very different issues.

We need a serious legislature

Rep. Stewart is right. Legislating is serious business. Legislators should treat altering the statutes, which are after all ultimately enforced by people with guns, as a sacred responsibility.

The people of Colorado deserve better than a rushed, over-stuffed, mutated bill with sloppy language, a fake emergency, and too little concern for people’s liberties.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.