DENVER — Jennifer Sey hasn’t run afoul of Colorado’s newly passed ban on “misgendering,” but it’s only a matter of time.
Last year, Ms. Sey founded XX-XY Athletics, a sportswear company that bills itself as “the only brand standing up for female athletes and the protection of women’s sports” in reaction to the influx of male-born competitors in female athletics.
Referring to transgender people by their opposite-sex names and pronouns in advertising and customer interactions, as Colorado law now requires, would be more than inconvenient — it would contradict her entire business model.
“When we talk about how it isn’t right for boys to compete in girls’ sports, it’s important to me to say that they are boys, that they are male. Otherwise, the issue gets obscured and erased entirely,” Ms. Sey said in an interview at her Denver office with The Washington Times.
“And so we’re pretty staunch about that,” she continued. “At the end of the day, I am a fierce proponent of free speech, and this is requiring that we censor ourselves and further a belief system that we don’t adhere to. And I’m not going to do that.”
Ms. Sey isn’t waiting around for the state to prosecute her. She filed a preemptive challenge last month against the law, known as the Kelly Loving Act or House Bill 1312, arguing that it “coerces the company to speak against its principles and alter the meaning of its core message.”
“If XX-XY Athletics refuses, the company faces cease-and-desist orders, expensive investigations, hearings, and civil and criminal penalties,” said the lawsuit filed May 27 in federal court. “Colorado officials have not hesitated to go after businesses for violating the same law in the past, torching the First Amendment in the process.”
The bill signed into law last month by Democratic Gov. Jared Polis adds “chosen name” and “how the individual chooses to be addressed” to the Colorado Anti-Discrimination Act, which already bans discrimination based on “gender identity” and “gender expression.”
Mr. Polis described the changes to Colorado Politics, a news site, as a “few provisions that make it easier to reflect the gender identity of folks.”
“This landmark bill strengthens and clarifies key protections for transgender Coloradans under state law, ensuring dignity, safety, and access to essential services,” said the LGBTQ group Rocky Mountain Equality in a May 7 statement.
Representing Ms. Sey is the Alliance Defending Freedom, whose attorneys have an enviable track record in challenging Colorado’s anti-discrimination regimen.
The conservative legal foundation won U.S. Supreme Court victories against the state on behalf of Masterpiece Cakeshop owner Jack Phillips in 2018 and 303 Creative website designer Lorie Smith in 2023.
“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.”
In addition to “misgendering,” XX-XY Athletics engages in “deadnaming” by referring to transgender athletes by their birth names as well as their preferred names, such as “William ’Lia’ Thomas,” the male-born 500-yard freestyle winner in the NCAA women’s swimming championship in 2022.
XX-XY Athletics doesn’t have a permanent retail presence, but the company regularly communicates with the public through pop-up shops, advertising and social media posts. Ms. Sey is also a frequent speaker at public events in Colorado and elsewhere.
“XX-XY Athletics happily sells its products to anyone, regardless of any protected characteristics, including gender expression,” said the lawsuit. “But XX-XY Athletics will not knowingly refer to anyone — customer, prospective customer, athlete, public figure, or member of the public — using a ’chosen name,’ pronouns, honorifics, or other language contrary to the person’s biological sex.”
Colorado Attorney General Phil Weiser’s office declined to comment on the lawsuit.
Ms. Sey is no stranger to contention. A former elite gymnast, she wrote a 2009 book about abusive practices in women’s gymnastics called “Chalked Up” and produced a 2020 Netflix documentary on the issue called “Athlete A.”
She spent 23 years working for Levi Strauss in San Francisco, rising to the position of chief marketing officer and brand president, but left the company and moved to Denver in 2021 amid her outspoken criticism of California’s school lockdowns during the COVID-19 pandemic.
“It was a tough couple of years,” Ms. Sey said. “It didn’t go great for me in the city of San Francisco or corporate America. They were very much training their ire on me — ’You’re a racist, murderer,’ all the things they call people who dared to say, ’Maybe we should let the kids go back to school.’”
She decided to start her own company, and a brand based on promoting single-sex women’s sports was a natural fit.
“It just felt like kismet that I could bring my athletic background, my brand-building and my willingness to say stuff that gets me in trouble into one endeavor,” Ms. Sey said. “I felt like this issue is really important. I care deeply about it. It’s fundamental to women’s rights to be able to define what a woman is.”
It may not be Adidas, but XX-XY Athletics is no garage start-up. The company’s offices are located in Denver’s upscale Cherry Creek neighborhood. Its brand ambassadors include Riley Gaines and Paula Scanlan, former NCAA swimmers turned prominent women’s sports advocates.
XX-XY Athletics is also known for goading Nike, which has featured transgender athletes in its advertising. A video released in October called “Dear Nike” showing girls asking why Nike won’t stand up for them went viral, drawing millions of views with no paid advertising.
In honor of #XXDay tomorrow, please join us in asking @Nike to do the right thing & stand up for girls, by sharing our new ad, “Dear Nike“. pic.twitter.com/af8XeYPhTv
— XX-XY Athletics (@xx_xyathletics) October 9, 2024
Ms. Sey has paid a price for her stance. For example, she said TikTok rejected an ad last year that referred to a male-to-female transgender athlete as a “boy.” She’s often accused of being transphobic or asked why she doesn’t simply use preferred pronouns out of common courtesy.
As far as she’s concerned, preferred pronouns are the “gateway drug.”
“Once we say, ’Lia Thomas is a woman,’ once we say, ’A.B. Hernandez is a girl,’ how do you at that point say these people can’t compete in women’s and girls’ sports?” Ms. Sey asked. “When our language is co-opted, then the truth is co-opted. I just feel like we have to wrest back reality and the culture with full force.”
Is she being rude? “I’m allowed to be rude,” she said. “I’m allowed to be mean if I want to be. I don’t even think it’s mean. Reality isn’t mean.”
The lawsuit filed in the U.S. District Court for the District of Colorado accused the state of violating the First Amendment and the Fourteenth Amendment’s Equal Protection Clause by requiring “biologically inaccurate speech.”
“It’s really important to me that we use biologically correct language,” said Ms. Sey. “I would argue that we’re the ones correctly gendering.”
