Washington, DC — The Colorado General Assembly requires citizens who comment about trans-related bills to avoid “misgendering” or criticizing transgender individuals, even if doing so requires those citizens to lie or use ideological terminology that they fundamentally disagree with.
When a Colorado legislator didn’t like what Christina Goeke said at a public hearing on a trans-related bill, lawmakers interrupted her, cut off her speaking time, and even erased part of her testimony from the official record.
Now, the Institute for Free Speech is asking the Supreme Court whether lawmakers responsible can invoke “legislative immunity” to avoid being held accountable for violating Coloradans’ First Amendment rights.
The Institute filed a cert petition today in Gays Against Groomers, et al. v. Garcia, et al., on behalf of Christina Goeke, Dr. Rich Guggenheim, and their organizations, the Rocky Mountain Women’s Network and Gays Against Groomers, respectively.
In 2024, Colorado held hearings on HB24-1071, a bill aimed at facilitating legal name changes for transgender felons. The bill was nicknamed “Tiara’s Law” after a biological male felon who was seeking a name change. During those hearings, Goeke and Guggenheim attempted to testify that the bill would make it easier for people with violent or predatory records to conceal their criminal past and might make it easier for such people to victimize children or other vulnerable populations. But Goeke and Guggenheim refused to use “Tiara’s” preferred pronouns or assumed name, or to portray “Tiara” in a positive light. Goeke, for example, attempted to draw attention to “Tiara’s” criminal history.
Legislators repeatedly enforced viewpoint-based speech restrictions against Goeke and Guggenheim, interrupting them, warning them against “misgendering” the bill’s namesake, cutting their speaking time, and, in Goeke’s case, asking her to leave the hearing room and scrubbing part of her testimony from the public record.
The bill became law, but Goeke and Guggenheim still face the same censorship rules at future hearings, so they sued to prevent further enforcement. A federal district court, and then the Tenth Circuit, sided with the legislators—not by finding the censorship constitutional, but by ruling that “legislative immunity” protects them from being held accountable.
Legislative immunity is a legal doctrine that shields individual lawmakers from being sued personally for monetary damages arising from their votes and floor speeches. Here, the Tenth Circuit held that this immunity also applies to official-capacity claims and so bars the petitioners from obtaining a court order requiring the legislators to stop enforcing “misgendering” restrictions. The court separately ruled that policing which words citizens may use during public comment counts as protected “legislative” business, no different from passing a bill.
Other federal courts, including the Supreme Court, have previously held that officials sued in their official capacity for an order to follow the Constitution cannot invoke a personal defense like legislative immunity. The petition also argues that the ruling conflicts with legal precedent holding that enforcing a rule is not the same as legislating it.
One Tenth Circuit judge, concurring in part, warned that the ruling “allows legislative bodies to create rules under the guise of decorum that essentially silence opposition in legislative hearings.”
“No government official should be able to shut down speech or erase a speaker’s words from the public record simply because the speaker refused to use ideological terminology like preferred pronouns,” said Institute for Free Speech Senior Attorney Del Kolde, lead litigator on the case. “If courts can’t even stop elected officials from enforcing a political speech code that forces some citizens to lie in order to comment on pending legislation, the First Amendment becomes optional. That should not be allowed to stand.”
To read the Institute’s cert petition in Gays Against Groomers, et al. v. Garcia, et al., click here. To read more about the case, including all case filings, visit our case page here.
About the Institute for Free Speech
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.
