Defending Education et al v. Sullivan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 25-cv-01572-RMR-MDB
DEFENDING EDUCATION, et al.,
Plaintiffs,
v.
AUBREY C. SULLIVAN, Director of the Colorado Civil Rights Division (the “Division”), in
her official capacity;
SERGIO RAUDEL CORDOVA, GETA ASFAW, MAYUKO FIEWEGER, DANIEL S.
WARD, JADE ROSE KELLY, and ERIC ARTIS, as members of the Colorado Civil
Rights Commission, in their official capacities; and
PHIL WEISER, Colorado Attorney General, in his official capacity,
Defendants.
Civil Action No. 25-cv-01668-RMR-MDB
COMMITTEE OF FIVE, INC. d/b/a XX-XY ATHLETICS,
Plaintiff,
v.
AUBREY C. SULLIVAN, Director of the Division, in her official capacity, et al.,
Defendants.
Civil Action No. 25-cv-02177-RMR-MDB
DOXA ENTERPRISES, LTD d/b/a Born Again Used Books,
Plaintiff,
v.
AUBREY C. SULLIVAN, Director of the Division, in her official capacity, et al.,
Defendants.
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ORDER ADOPTING MAGISTRATE JUDGE RECOMMENDATION
This 	matter is 	before the Court 	on 	the Recommendation of United States
Magistrate Judge Maritza Dominguez Braswell. On February 19, 2026, Magistrate Judge
Braswell held a hearing addressing three motions for preliminary injunction in three
related cases: Defending Education, et al, v. Sullivan, et al., No. 25-cv-01572-RMR-MDB
(“Defending Education”); Committee of Five, Inc. v. Sullivan, et al., No. 25-cv-01668-
RMR-MDB (“Committee of Five”); and Doxa Enterprises, Ltd., v. Sullivan, et al., No. 25-
cv-02177-RMR-MDB (“Doxa”). At the end of the hearing, Magistrate Judge Braswell
pronounced the Recommendation: Defending Education, ECF No. 102; Committee of
Five, ECF No. 87; and Doxa, ECF No. 49.
The motions addressed in the Recommendation are motions for preliminary
injunction filed by Plaintiff(s) in each case: Defending Education, ECF No. 27; Committee
of Five, ECF No. 15; and Doxa, ECF No. 4. Magistrate Judge Braswell recommends
denying each motion for preliminary injunction. Plaintiff(s) timely filed an objection to the
Recommendation in each case: Defending Education, ECF No. 110; Committee of Five,
ECF No. 95; and Doxa, ECF No. 57. Defendants filed a response in each case: Defending
Education, ECF No. 112; Committee of Five, ECF No. 97; and Doxa, ECF No. 59.
The Court has reviewed the Recommendation, as well as the objections, the
responses, the record, and the pleadings in each case. For the reasons stated below, the
Court overrules the objections and adopts the Recommendation.
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I. 	BACKGROUND
The central issue in this case is whether the Court should enjoin enforcement of
Colorado’s amended anti-discrimination law. All Plaintiffs allege the amended statute
unconstitutionally regulates their speech, violating the First and Fourteenth Amendment.1
The Colorado Anti-Discrimination Act (“CADA”) prohibits discrimination in places of public
accommodation. See Colo. Rev. Stat. § 24-34-601. In May 2025, Colorado passed HB25-
1312 	(the 	“Act”), 	which 	amends 	portions 	of 	the 	CADA. 	Plaintiffs 	challenges 	the
constitutionality of CADA’s discrimination in places of public accommodation statute with
the Act’s amended definitions.
A. Colorado Statutes at Issue
The “Discrimination in places of public accommodation” statute under CADA as
amended states:
It is a discriminatory practice and unlawful for a person,
directly or indirectly, to refuse, withhold from, or deny to an
individual or a group, because of disability, race, creed, color,
sex, sexual orientation, gender identity, gender expression,
marital status, national origin, or ancestry the full and equal
enjoyment 	of 	the 	goods, 	services, 	facilities, 	privileges,
advantages, 	or 	accommodations 	of 	a 	place 	of 	public
accommodation 	or, 	directly 	or 	indirectly, 	to 	publish,
circulate, 	issue, 	display, 	post, 	or 	mail 	any 	written,
electronic, 	or 	printed 	communication, 	notice, 	or
advertisement 	that 	indicates 	that 	the 	full 	and 	equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of a place of public
accommodation will be refused, withheld from, or denied
an 	individual 	or 	that 	an 	individual's 	patronage 	or
presence 	at 	a 	place 	of 	public 	accommodation 	is
1 Because these cases involve “a common question of law or fact,” the Court addresses the Defending
Education, Committee of Five, and Doxa preliminary injunction motions in this consolidated Order “to
avoid unnecessary cost or delay” under Fed. R. Civ. P. 42(a).
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unwelcome, objectionable, unacceptable, or undesirable
because 	of 	disability, 	race, 	creed, 	color, 	sex, 	sexual
orientation, gender identity, gender expression, marital
status, national origin, or ancestry.
Colo. Rev. Stat. § 24-34-601(a)(2) (emphases added). The Act amends CADA’s definition
of “gender expression” to:
an 	individual's 	way 	of 	reflecting 	and 	expressing 	the
individual's 	gender 	to 	the 	outside 	world, 	typically
demonstrated through appearance, dress, behavior, chosen
name, and how the individual chooses to be addressed.
Id. § 24-34-301(9) (emphasis added). It also amends “chosen name” to mean:
a 	name 	that 	an 	individual 	requests 	to 	be 	known 	as 	in
connection to the individual's disability, race, creed, color,
religion, 	sex, 	sexual 	orientation, 	gender 	identity, 	gender
expression, marital status, familial status, national origin, or
ancestry, so long as the name does not contain offensive
language and the individual is not requesting the name for
frivolous purposes.
Id. § 24-34-301(3.5). And finally, “gender identity” is defined under CADA as:
an individual's innate sense of the individual's own gender,
which may or may not correspond with the individual's sex
assigned at birth.
Id. § 24-34-301(10).
B. Background on Defending Education, Committee of Five, and Doxa
Plaintiffs
Defending Education plaintiffs are various non-profit organizations (Defending
Education, Colorado Parent Advocacy Network, Protect Kids Colorado, and Do No
Harm), two individuals (Dr. Travis Morrell and Dr. Valeri Leswing), and Dr. Leswing’s
medical practice, Mountain Pediatrics. Defending Education, ECF No. 27 at 12-13. The
organizations “hold traditional views on matters of sex and gender identity” and “believe
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that sex is determined at birth and immutable.” Id. at 13. They host events in places of
public accommodation and want “to refer to individuals at these events using biological
pronouns, birth names, and other biologically accurate terms, even if those pronouns,
names, or terms conflict with an individual’s self-professed gender identity or expression.”
Id. at 13. Dr. Morrell and Dr. Leswing possess “scientific, objective, and reproducible
views on matters of sex and gender identity.” Id. at 14. Dr. Morrell also “wants to refer to
individuals using birth names and biologically accurate pronouns and other terms” when
writing or speaking publicly about issues of sex and gender. Id. Dr. Leswing “wishes to
issue a public statement notifying potential patients that she will not refer to them using
chosen names, preferred pronouns, or other non-biological terms.” Id. at 15.
The Defending Education organizations allege the Act forces them to stop
addressing individuals by their biological pronouns in places of public accommodation
and prohibits them from publishing materials that refer to individuals using biologically
accurate pronouns, birth names, and other terms inconsistent with their purported gender
identity or gender expression. Id. Dr. Morrell and Dr. Leswing “fear that their medical
practices will be investigated and punished for their speech,” and Dr. Morrell fears
termination of his ownership interest or other disassociation from his medical practice if
he is investigated. Id.
Committee of Five plaintiff is an athletic-apparel retailer called XX-XY Athletics
(“XX-XY”) with a distinct message and mission: “to empower women and protect women’s
sports and women’s spaces.” Committee of Five, ECF No. 1 ¶ 1. XX-XY’s message and
mission are “grounded in the belief that men and women are physiologically different; sex
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is binary, biological, and immutable; women deserve the chance to be champions in their
own sports.” Id. XX-XY uses its platform to draw attention to “men and boys who compete
in women’s sports” and “refers to them with masculine pronouns and terms, often using
their given name, rather than their chosen names.” Id. ¶ 2. In one instance, XX-XY
published a video on X “protesting a male athlete competing in girls’ high-school track in
Pennsylvania.” Id. ¶ 3. The post included the text: “Sean ‘Luce’ Allen is having a track
season to remember. Meanwhile girls are receiving a message they’ll never forget. When
boys run girls’ track, they win. And girls lose.” Id. The post refers to the athlete as a “boy”
and uses the athlete’s given name. Id. XX-XY alleges that if it could not refer to male
athletes as “male,” “men,” or “boys,” its advertisements would not make sense. Id. ¶ 4. It
asserts that “the Act coerces the company to speak against its principles and alter the
meaning of its core message.” Id. ¶
Finally, Doxa plaintiff is a Christian bookstore, Born Again Used Books, in Colorado
Springs with the “mission [] to provide literature that supports customers in their
relationship with God and others.” Doxa, ECF No. 4-1 at 10. To achieve this, Born Again
Used Books “curates its selection according to its Christian faith, refusing to sell books
with a message contradicting the store’s mission of providing uplifting Christian support.”
Id. “To stay faithful to these beliefs,” Born Again Used Books “will not use pronouns,
honorifics, or other language inconsistent with a person’s sex.” Id. at 9. Additionally, it
would like to “formalize this policy, publish it to its employees and customers, and publicly
explain the religious basis for the policy, including by writing about it on the Bookstore’s
blog.” Id. However, Born Again Used Books “happily sells books to everyone.” Id. It “fears
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that if it formalized its policy on gender identity and pronouns and spoke about that policy
on its blog, Colorado would swoop in to punish it under CADA.” Id. at 12.
Defending Education plaintiffs, XX-XY, and Born Again Used Books (collectively,
“Collective Plaintiffs”) seek as-applied pre-enforcement preliminary injunctions under the
First and Fourteenth Amendment enjoining Defendants from enforcing CADA on them.
Defending Education, ECF No. 25; Committee of Five, ECF No. 15; Doxa, ECF No. 4.
C. First Amendment Pre-Enforcement Claims
To establish standing for its First Amendment pre-enforcement claim, Collective
Plaintiffs must demonstrate they “intend[] to engage in arguably protected conduct that is
covered 	by 	the 	challenged 	governmental 	action” 	and 	“face[] 	a 	credible 	threat 	of
enforcement.” Gays Against Groomers v. Garcia, No. 24-1473, 2026 WL 668378, at *5
(10th Cir. Mar. 10, 2026). The plain language of CADA’s public accommodation statute
describes prohibited “discriminatory conduct” as “to refuse, withhold from, or deny to an
individual or a group, because of . . . gender identity, gender expression . . . the full and
equal 	enjoyment 	of 	the 	goods, 	services, 	facilities, 	privileges, 	advantages, 	or
accommodations of a public place of accommodation.” Colo. Rev. Stat. § 24-34-601.
Therefore, Collective Plaintiffs’ intended conduct—to refer to individuals using pronouns,
honorifics, or titles that are consistent with that person’s biological sex without denying
goods or services—does not appear on its face to violate CADA or present a credible
threat of enforcement. For these reasons, and those stated below, the Court accepts the
Recommendation and denies each Collective Plaintiffs’ Motion for Preliminary Injunction.
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II. 	LEGAL STANDARD
The Court is required to make a de novo determination of those portions of a
magistrate judge’s recommendation to which a specific, timely objection has been made,
and it may accept, reject, or modify any or all of the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination 	of 	those 	portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made.”); Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.”).
“[A] party’s objections to the magistrate judge’s report and recommendation must
be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review.” United States v. One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir. 1996).
III. 	THE RECOMMENDATION
Magistrate Judge Braswell opens and closes her Recommendation emphasizing
that “[a] preliminary injunction is an extraordinary remedy, the exception rather the rule.”
Doxa, ECF No. 54 at 79:7-10 (quoting Gunnison Cnty. Stockgrowers' Ass'n, Inc. v. U.S.
Fish & Wildlife Serv., 707 F. Supp. 3d 1056, 1062 (D. Colo. 2023)); id. at 91:22-25. She
also 	highlights 	several 	threshold 	considerations. 	First, 	there 	is 	no 	“freestanding
constitutional right to pre-enforcement review in federal court.” Id. at 79:22-80:2 (quoting
Uber Techs., Inc. v. Moss, No. 1:25-CV-00096-DDD-KAS, 2025 WL 1420940, at *3 (D.
Colo. Jan. 31, 2025)). Second, the injunctive relief requested is exceptionally broad. Id.
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80:3-8. Third, the motions for preliminary injunction seek the same relief as its complaint,
which is disfavored. Id. at 80:12-16 (citing Free the Nipple v. City of Fort Collins, 916 F.3d
792, 797 (10th Cir. 2019)). Fourth, granting a preliminary injunction would disturb rather
than preserve the status quo. Id. at 81:5-11. And fifth, even if the Court were to enjoin
Defendants from enforcing the challenged provisions, Collective Plaintiffs would still be
required to comply with CADA or risk suit by an aggrieved individual. Id. at 81:18-25.
Magistrate Judge Braswell explains the evidence “suggests that [Collective] Plaintiffs feel
the pressure more significantly from the public at large than anything else. . . . Thus, from
the Court’s perspective, [Collective] Plaintiffs’ own statements demonstrate that a
preliminary injunction would be of limited practical value and would not cure the dilemma
that they describe.” Id. at 82:18-83:5.
Next, Magistrate Judge Braswell turns to the factors Collective Plaintiffs must
prove to succeed on a request for pre-enforcement preliminary injunction. She first
considers the likelihood of success on the merits and the fundamental question of
standing. Id. at 83:9-22. Magistrate Judge Braswell explains that even if Collective
Plaintiffs made a clear showing that their speech is actually prescribed and chilled, “the
absence of a credible threat of enforcement can be dispositive in a pre-enforcement
standing analysis.” Id. at 84:13-20 (citing Moms for Liberty - Wilson Cnty., Tennessee v.
Wilson Cnty. Bd. of Educ., 155 F.4th 499, 512 (6th Cir. 2025)). When analyzing credible
threat of enforcement, Magistrate Judge Braswell evaluates three factors: (1) whether the
Collective Plaintiffs showed past enforcement against the same conduct; (2) whether
authority to initiate the charges was not limited to a prosecutor or an agency and instead
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any person can file a complaint; and (3) whether the state disavowed future enforcement.
Id. at 84:21-85:2. She also highlights that “[e]ach element must be supported in the same
way as any other matter on which the [Collective] Plaintiff bears the burden of proof, i.e.,
with the same manner and degree of evidence required at the successive stages of the
litigation.” Id. at 85:7-14 (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014)). At the preliminary injunction stage, the plaintiff must make a “clear showing that
she is likely to establish each element of standing.” Id. at 85:15-22 (citing Murthy v.
Missouri, 603 U.S. 43, 58 (2024)). Therefore, Magistrate Judge Braswell applies the clear
showing standard. Id. at 85:23-86:6.
Magistrate Judge Braswell distinguishes Darren Patterson Christian Acad. v. Roy,
699 F. Supp. 3d 1163, 1169 (D. Colo. 2023) and highlights that, in that case, Judge
Domenico recognized the presumption of enforcement for new laws but did not adopt the
presumption himself. Id. at 85:2-10. She also explains that Collective Plaintiffs overstates
Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 387 (1988), because the statute in
that case was directed at plaintiffs and imposed criminal prosecution as a penalty. Id. at
86:17-87:1. Then, she clarifies that Defendant Sullivan’s interpretation of the subject
CADA provisions, while not law, helps demonstrate that the mere act of speaking would
not automatically trigger enforcement and that this operates like a disavowal under factor
three (whether the state disavowed future enforcement). Id. at 87:15-88:23. Regarding
factor one (whether the Collective Plaintiffs showed past enforcement against the same
conduct), Magistrate Judge Braswell calls attention to the fact that the Colorado Civil
Rights Division (the “Division”) has not received any complaints about Collective Plaintiffs’
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misgendering and that the Division has not warned them that their desired approach is
unlawful. Id. at 88:24-89:6. She ultimately determines that these two of the three factors
are enough to weigh against a finding of credible threat of enforcement and that Collective
Plaintiffs have “not demonstrated a credible threat under the heavy burden that applies
to these preliminary injunction motions.” Id. at 90:2-25. With respect to factor two (whether
authority to initiate the charges is limited to a prosecutor or an agency), Magistrate Judge
Braswell states that any person can file a charge alleging discrimination under CADA. Id.
at 90:9-14. Collective Plaintiffs contend that the authority to initiate charges remains with
the Division, because it can choose which complaints to take action on. Id. at 90:15-20.
Even if this factor weighed in favor of Collective Plaintiffs, Magistrate Judge Braswell finds
the balance of the three factors weigh against them. Id. at 90:21-25. Thus, she determines
that Collective Plaintiffs have not established a credible threat of enforcement to have
standing.
Finally, Magistrate Judge Braswell notes that “the balance of harms and public
interest do not favor the sweeping injunctions [Collective] Plaintiffs seek.” Id. at 91:7-17.
Thus, she recommends the preliminary injunction requests be denied.
IV. 	ANALYSIS
A. Threshold Considerations
Collective Plaintiffs object to the Recommendation’s threshold considerations,
arguing that “none has merit.” ECF No. 57 at 1. Plaintiff makes six arguments: (1) a
preliminary injunction could be undone after trial; (2) a preliminary injunction would not
disrupt the status quo; (3) preliminary injunctions are proper in pre-enforcement litigation;
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(4) Collective Plaintiffs seek an appropriate scope of relief; (5) CADA’s enforcement
scheme counsels for preliminary relief, not against it; and (6) standing requirements are
applied leniently in First Amendment cases. The Court addresses each argument below.
First, 	Collective 	Plaintiffs 	object 	to 	the 	Recommendation’s 	fourth 	threshold
consideration that they seek a disfavored injunction. Disfavored injunctions prompt “a
heavier burden on the likelihood-of-success-on-the-merits and the balance-of-the-harms
factors.” Free the Nipple, 916F.3d at 797. Collective Plaintiffs argue that they are not
seeking a disfavored injunction because, although their complaints and motions for
preliminary injunction seek the same relief, the preliminary injunction can be undone.
Committee of Five, ECF No. 95 at 7-8; Doxa, ECF No. 57 at 7-8 (citing Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1247 (10th Cir. 2001)). Collective Plaintiffs
contend the instant case is similar to Pierce, where the Tenth Circuit determined “the
preliminary injunction granted by the district court did not, as the defendants contend,
afford the tribe substantially all the relief it might recover.” 253 F.3d at 1278. The Court
agrees. In Pierce, the plaintiff’s complaint alleged that “the state was compelled to grant
recognition to tribal motor vehicle registrations and titles pursuant to the Indian Commerce
Clause, the Kansas Act for Admission, and other federal law.” Id. at 1239. The preliminary
injunction motion sought to “enjoin the Defendants from enforcing the Kansas motor
vehicle registration and titling laws against the Plaintiff and any persons who operate or
own a vehicle registered and titled the Tribal Code § 17-10-1 et seq.” Id. Here, Collective
Plaintiffs’ complaint seeks a “preliminary and permanent injunction” to enjoin Defendants
and those acting in concert with them from enforcing CADA as applied to Collective
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Plaintiffs and “third-party speakers similarly situated to” them. Committee of Five, ECF
No. 1 at 50; Doxa, ECF No. 1 at 40. Collective Plaintiffs’ preliminary injunction requests
only seek to enjoin Defendants from enforcing CADA as applied to Collective Plaintiffs.
Committee of Five, ECF No. 15 at 1-2; Doxa, ECF No. 4 at 1-2. Thus, the Court is
persuaded by Collective Plaintiffs’ argument that granting their preliminary injunction
requests would not afford them all the relief they might recover.
However, another type of disfavored injunction is one that would alter the status
quo. Free the Nipple, 916 F.3d at 797. Collective Plaintiffs argue a preliminary injunction
would not disrupt status quo. The Court disagrees. As Defendants note, the CADA
provisions at issue were in place decades before the passage of the Act and, the
“Commission Rules have explicitly outlined when misgendering and deadnaming rise to
a CADA violation since 2009.” Committee of Five, ECF No. 97 at 4; Doxa, ECF No. 59 at
4. Commission Rule 81.6(A)(4), which went into effect November 30, 2009, prohibits
“[d]eliberately misusing an individual’s preferred name, form of address, or gender-related
pronoun” as unlawful harassment. 3 CCR 708-1-81.6(4). Thus, Collective Plaintiffs’
argument that CADA as applied prior to the Act only prevented discrimination in furnishing
tangible goods does not hold weight. Their requested injunctions would disrupt CADA’s
decades-long history. Accordingly, the Court agrees with the Recommendation’s finding
that Collective Plaintiffs seek a disfavored injunction.
Next, Collective Plaintiffs object to Magistrate Judge Braswell’s determination that
pre-enforcement actions are “particularly fraught” because there is no “freestanding
constitutional right to pre-enforcement review in federal court.” Committee of Five, ECF
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No. 95 at 9; Doxa, ECF No. 57 at 9. They argue that the Tenth Circuit regularly grants
pre-enforcement preliminary injunctions and that “Uber Technologies merely stands for
the proposition that a pre-enforcement plaintiff seeking a preliminary injunction must show
a credible threat to avoid an ‘advisory ruling.’” Committee of Five, ECF No. 95 at 9; Doxa,
ECF No. 57 at 9 (citing Uber Technologies, 2025 WL 1420940, at *3). The Court finds
Collective Plaintiffs’ reasoning coincides with the Recommendation. The Court interprets
Magistrate Judge Braswell’s statement that there is no “freestanding constitutional right
to pre-enforcement review in federal court” to mean that a preliminary injunction is an
extraordinary 	remedy 	and 	that 	Collective 	Plaintiffs 	must 	meet 	their 	burden 	in
demonstrating the right to a pre-enforcement preliminary injunction. Collective Plaintiffs
do not (and cannot) dispute this.
Fourth, Collective Plaintiffs contend the relief they seek is appropriate in scope and
not “exceptionally broad” as stated in the Recommendation. Committee of Five, ECF No.
95 at 9; Doxa, ECF No. 57 at 9. The Court acknowledges that the Recommendation
addresses all three preliminary injunction motions filed by different groups of plaintiffs.
Thus, certain statements made in the Recommendation may apply more directly to some
plaintiff’s motions and not others. The Court agrees that injunctive relief must be “narrowly
tailored to remedy the harm shown.” Garrison v. Baker Hughes Oilfield Operations, Inc.,
287 F.3d 955, 962 (10th Cir. 2002). However, the scope of each Collective Plaintiffs’ relief
requested was not the basis for the recommended denial of injunctive relief, and the Court
will not give this consideration extra weight.
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Fifth, Collective Plaintiffs object to the Recommendation’s interpretation of CADA’s
enforcement scheme as it relates to their motions for preliminary injunction. Collective
Plaintiffs argue “an injunction need not relieve every conceivable injury to provide an
appropriate remedy.” Committee of Five, ECF No. 95 at 10; Doxa, ECF No. 57 at 10
(citing Uzuegbunam v. Preczewski, 592 U.S. 279, 291 (2021)). The Recommendation
does not bring up CADA’s private right of action to indicate that an injunction needs to
relieve 	“every 	conceivable 	injury.” 	Instead, 	CADA’s 	private 	right 	of 	action 	allows
individuals to file the type of complaints Collective Plaintiffs seek to enjoin Defendants
from pursuing. This part of CADA’s enforcement scheme highlights the fact that the grant
of Collective Plaintiffs’ preliminary injunction motions against Defendants “would not cure
the dilemma that [Collective Plaintiffs] describe.” ECF No. 54 at 82:18-83:5. Thus, the
Recommendation appropriately considers this threshold issue before reaching the merits
of the case.
Finally, Collective Plaintiffs contend the Recommendation incorrectly applied the
heightened “clear showing” standard in its analysis. Committee of Five, ECF No. 95 at
11; Doxa, ECF No. 57 at 11. Relying on Peck, Collective Plaintiffs argue that standing
requirements should be applied “leniently” in First Amendment cases. 	(citing Peck v.
McCann, 43 F.4th 1116, 1129 (10th Cir. 2022)). Collective Plaintiffs fail to address the
rest of the Tenth Circuit’s statement—“the First Amendment context creates unique
interests that lead us to apply the standing requirements somewhat more leniently,
facilitating pre-enforcement suits.” Peck, 43 F. 4th at 1129 (emphasis added). The Tenth
Circuit goes on to explain that a plaintiff bringing a First Amendment claim can prove
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standing by: (1) “alleging an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by statute, and there exists a credible threat
of prosecution thereunder” or (2) “alleging a credible threat of future prosecution plus an
ongoing injury resulting from the statute's chilling effect on his desire to exercise his First
Amendment 	rights.” 	Id. 	(emphases 	added). 	This 	does 	not 	contradict 	the
Recommendation’s application of the “clear showing” standard. See Murthy, 603 U.S. at
58 (“At the preliminary injunction stage, then, the plaintiff must make a ‘clear showing’
that she is ‘likely’ to establish each element of standing.”). Further, Collective Plaintiffs
concede in their objections that “[p]recedent requires only a clear showing that the
Bookstore is likely to establish a credible threat of enforcement.” Committee of Five, ECF.
No. 95 at 11; Doxa, ECF No. 57 at 11 (first emphasis added). Thus, Collective Plaintiffs
admit the Recommendation was correct in applying the “clear showing” standard.
However, Collective Plaintiffs insinuate that, because this “is not supposed to be a difficult
bar for plaintiffs to clear,” they must have surpassed it. Committee of Five, ECF. No. 95
at 11; Doxa, ECF No. 57 at 11 (citing Chiles v. Salazar, 116 F.4th 1178, 1198 (10th Cir.
2024)). The dispute lies in the result of the analysis, which the Court turns to next.
B. Credible Threat of Enforcement
Collective Plaintiffs assert they have standing, because they each face a credible
threat of enforcement. Committee of Five, ECF No. 95 at 11; Doxa, ECF No. 57 at 11.
Preliminarily, Plaintiff alleges the Recommendation disregards Tenth Circuit precedent
where plaintiffs were found to have standing even with past enforcement of a statute.
Committee of Five, ECF No. 95 at 11; Doxa, ECF No. 57 at 11 (citing 303 Creative LLC
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v. Elenis, 6 F.4th 1160, 1173 (10th Cir. 2021), rev’d, 600 U.S. 570 (2023); Chiles, 116
F.4th at 1198). Although Plaintiff does not discuss how this precedent applies to the
instant case, the Court finds them distinguishable.
Shortly before entering this Order on March 31, 2026, the Supreme Court issued
its opinion on Chiles, reversing the Tenth Circuit’s judgment. Chiles v. Salazar, No. 24-
539, 2026 WL 872307 (U.S. Mar. 31, 2026). The Supreme Court agreed with both the
district court and the Tenth Circuit determination that “Ms. Chiles had Article III standing
to pursue her as-applied pre-enforcement challenge.” Id. at *5. “Ms. Chiles had alleged a
‘credible threat’ that the State would enforce its law against her if she continued speaking
as she had in the past and wished to do in the future.” Id. Additionally, “both courts
observed, Colorado authorities had refused to disavow bringing enforcement actions
against her.” Id. The circumstances in this case are different.2 As described above,
Collective Plaintiffs’ intended conduct—to refer to individuals using pronouns, honorifics,
or titles that are consistent with that person’s biological sex—in and of itself does not
violate CADA’s public accommodations statute. The plain language of the statute requires
denial of “the full and equal enjoyment of the goods [or] services” of each public
accommodation. Colo. Rev. Stat. § 24-34-601. Collective Plaintiffs have not alleged such
denial of goods or services. In fact, Born Again Used Book states it will “happily sell its
products to anyone.” Therefore, Collective Plaintiffs’ intended conduct does not appear
on its face to violate CADA or present a credible threat of enforcement. And, for the
2 The Court also notes that the 303 Creative is distinguishable, because it was decided at the summary
judgment stage on the merits. 303 Creative LLC, 6 F.4th at 1190, The instant case has not yet reached
the merits.
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reasons stated below, Collective Plaintiffs have failed to demonstrate the elements of
credible threat of enforcement to justify pre-enforcement injunctive relief.
1. 	Disavowal of Future Enforcement
Collective Plaintiffs reject the Recommendation’s finding that Director Sullivan’s
testimony “operates like a disavowal.” Committee of Five, ECF No. 95 at 12; Doxa, ECF
No. 57 at 12. Collective Plaintiffs suggest that, because it declines to use pronouns in
every situation, it “risks violating Colorado’s supposedly fact-intensive and obscure
inquiry.” Committee of Five, ECF No. 95 at 12; Doxa, ECF No. 57 at 12. Relying on Scott
v. Allen, they contend that “Colorado’s claim that enforcement under CADA depends on
the facts just confirms the enforcement threat.” 	Committee of Five, ECF No. 95 at 13;
Doxa, ECF No. 57 at 13. But in Scott v. Allen, “at least one professional association
believe[d] that Scott violated the statute, and the District Attorney himself refuse[d] to
disavow that Scott’s intended actions do not fall under the statute.” 153 F.4th 1088, 1097
(10th Cir. 2025). Additionally, the District Attorney did not disavow the possibility of a
future prosecution. Id.
Here, the specific facts at issue are important. Again, Collective Plaintiffs have
represented they will not deny their goods or services to anyone. Therefore, there is no
violation of the statute on its face. Further, while Collective Plaintiffs eschew the Division’s
explanation of the process it uses to determine whether a prosecution under this statute
would be pursued, such explanation sheds light on the likelihood of prosecution and the
credible threat of prosecution—an issue on which Collective Plaintiffs bear the burden.
According to the Director, a CADA violation would have to satisfy three steps: (1) “the
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public accommodation must intentionally treat a customer or prospective customer
differently based on their protected class status”; (2) “the customer must, as a subjective
matter, experience the conduct at issue to be a denial of the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of the place of
public accommodation because of the customer’s gender identity;” and (3) “the Division
would have to determine that a reasonable person, under the circumstances, would
experience the conduct to be a denial of the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of a place of public
accommodation based on their gender identity.” Committee of Five, ECF No. 84-1 at 7;
Doxa, ECF No. 46-1 at 7. Defendants have provided sworn declarations, deposition
testimony, 	and 	discovery 	responses 	explaining 	that 	Collective 	Plaintiffs’ 	intended
misgendering and deadnaming alone is not conduct that violates CADA per se—the
conduct must rise to the level of harassment to be a violation. Doxa, ECF No. 59 at 7-8;
see Doxa, ECF No. 46-1 at 8 (Defendants’ interrogatory response describing conduct that
would violate CADA: “Without any facts regarding the circumstances surrounding the
hypothetical complained conduct, the most comparative conduct described by the
interrogatory would be harassment.”). The Division has not received any complaints
against 	a 	place 	of 	public 	accommodation 	regarding 	its 	policy 	or 	publication 	on
misgendering or deadnaming. Committee of Five, ECF No. 84-1 at 555; Doxa, ECF No.
46-1 at 555. Even if a member of the public were to file a complaint, it would ultimately be
up to the Division to determine whether an enforcement action would proceed. Again, the
Director has provided evidence that such an action would not be taken under the
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circumstances presented by Collective Plaintiffs. While it is true the Defendants have not
completely 	disavowed 	any 	possible 	prosecution 	of 	Collective 	Plaintiffs 	under 	any
circumstances, this is not required. Rather Collective Plaintiffs must demonstrate a
credible threat of prosecution. has At this stage, they have not offered a reasonable basis
to infer they face a credible threat of prosecution—which, again, is their burden. Thus, the
Court agrees with the Recommendation on this factor.
2. 	Past Enforcement Against the Same Conduct
Plaintiff contends that “[e]nforcing CADA against similar speech is enough” to
satisfy the second credible threat of enforcement. Committee of Five, ECF No. 95 at 13;
Doxa, ECF No. 57 at 13. Collective Plaintiffs offer two examples where the Division found
probable cause “based solely on misgendering.” Committee of Five, ECF No. 95 at 13-
14; Doxa, ECF No. 57 at 13-14. According to Collective Plaintiffs, these examples and
the fact that they challenge “a newly enacted law” is enough to prove this factor.
Defendants clarify that the examples introduced by Collective Plaintiffs were
circumstances in which there was “a denial of full and equal enjoyment of goods and
services.” Committee of Five, ECF No. 97 at 10; Doxa, ECF No. 59 at 10. The first
example involved a complainant utilizing the respondent’s services to donate blood.
Doxa, ECF No. 47 at 142. The complainant identified as “male” when creating a donor
profile but completed her transition from male to female over a decade later. Id. After her
transition, the complainant sought the respondent’s blood donation services and filled out
a new profile, self identifying as “female.” Id. at 143. The respondent merged the accounts
but “refused to change the [c]omplainant’s gender to female in the system.” Id. In the
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second example, the charging party and her friend were patrons of the respondent, a
cocktail lounge. Id. at 23. The charging party, who identifies as female/transgender, and
her friend went to the women’s bathroom. Id. at 22-23. When they exited the bathroom,
an off-duty police officer employed by the respondent was waiting to speak with them. Id.
at 23-24. The officer “told her if they were going to use the women’s bathroom again then
they were not permitted to re-enter the establishment. Id. at 24.
As described above, a violation of CADA requires a denial of the full and equal
enjoyment of the goods or services offered by the public accommodation because of the
individual’s gender identity. In the blood bank case, the complainant “was not provided
equal treatment to donors outside her protected class, because she was not allowed to
self-identify her gender in her donor profile.” Id. at 143. In the other example, the
complainant was told if she and her friend were “going to use the women’s bathroom
again then they were not permitted to re-enter the establishment.” Id. at 24. In both cases,
the complainants were denied the services of the public accommodations because of
their gender identity.
Collective Plaintiffs have expressed that they intend to offer their goods or services
to everyone. Additionally, Darren Patterson Christian Academy and St. Mary do not
involve the conduct of misnaming and deadnaming. Darren Patterson Christian Academy,
699 F.Supp.3d at 1173 (addressing the non-discrimination rules of the “Universal
Preschool Program” as applied to hiring ministers); see also St. Mary Cath. Par. in
Littleton v. Roy, 736 F. Supp. 3d 956 (D. Colo. 2024) (also addressing the “Universal
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Preschool 	Program). Thus, 	Collective 	Plaintiffs 	have not satisfied 	their 	burden of
demonstrating past enforcement against the same conduct.
3. 	Authority to Initiate Charges
Collective Plaintiffs also object to the Recommendation’s conclusion that an
individual’s ability to file a charge against them weighs against a clear threat of
enforcement. Committee of Five, ECF No. 95 at 15; Doxa, ECF No. 57 at 15. Collective
Plaintiffs rely on 303 Creative, arguing that CADA’s complaint process itself creates a
credible threat of enforcement. Id. Indeed, the Supreme Court stated that “anyone in the
State may file a complaint . . . and initiate a potentially burdensome administrative hearing
process.” 303 Creative, 600 U.S. at 583. However, 303 Creative did not describe the
weight of each factor in the clear threat of enforcement analysis. In this case, Magistrate
Judge Braswell clearly explained that the weight of the other two factors are sufficient to
find that Collective Plaintiffs have not demonstrated they face a credible threat of
enforcement. Doxa, ECF No. 54 at 90:21-25. Collective Plaintiffs do not dispute this.
Thus, the Court finds that Collective Plaintiffs have not met their burden in proving
clear threat of enforcement to establish standing.
C. Remaining Preliminary Injunction Factors
Finally, Collective Plaintiffs object to the Recommendation’s finding that the
remaining preliminary injunction factors weigh against preliminary relief. Committee of
Five, ECF No. 95 at 15-16; Doxa, ECF No. 57 at 15-16. Collective Plaintiffs asserts that
(1) their injuries are irreparable because they face a credible threat of enforcement by
Colorado and (2) “it is always in the public interest to prevent the violation of a party’s
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constitutional rights.” Committee of Five, ECF No. 95 at 16; Doxa, ECF No. 57 at 16.
(citing Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). As described above,
Collective Plaintiffs have not demonstrated a credible threat of enforcement. They also
fail to provide evidence of a single complaint or history of enforcement tied to the conduct
at issue. Therefore, Collective Plaintiffs have not demonstrated irreparable harm. And,
while the Court agrees the public has an interest in protecting an individual’s constitutional
rights, this alone cannot overcome Collective Plaintiffs’ failure to satisfy their burden of
demonstrating that the extraordinary relief of pre-enforcement injunction is appropriate.
Accordingly, the Court agrees with the Recommendation and finds that Collective
Plaintiffs have not carried their burden to demonstrate pre-enforcement injunctive relief is
appropriate. Therefore, their requests for preliminary injunction are denied. The Court
notes that, at this stage, it has not reached the merits of these cases. The motions to
dismiss (Committee of Five, ECF Nos. 69, 70; Defending Education, ECF Nos. 81, 82;
Doxa, ECF Nos. 33, 34) are fully briefed and the Court orders the parties to set a status
conference with Magistrate Judge Braswell as soon as possible to address the motions
to dismiss and the relief requested thereunder.
V. 	CONCLUSION
For the reasons set forth above, the Court ORDERS:
1. 	Collective Plaintiffs’ Objections to the Recommendation (Defending Education,
ECF No. 110; Committee of Five, ECF No. 95; Doxa, ECF No. 57) are
OVERRULED;
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2. 	The Recommendation (Defending Education, ECF No. 102; Committee of Five,
ECF No. 87; Doxa, ECF No. 49) is ACCEPTED AND ADOPTED;
3. 	Collective Plaintiffs’ Motions for Preliminary Injunction (Defending Education,
ECF No. 27; Committee of Five, ECF No. 15; Doxa, ECF No. 4) are DENIED;
and
4. 	The parties are ORDERED to set a status conference with Magistrate Judge
Braswell to address the pending motions to dismiss (Defending Education, ECF
Nos. 81, 82; Committee of Five, ECF Nos. 69, 70; Doxa, ECF Nos. 33, 34) and
the relief requested thereunder.
DATED: March 31, 2026
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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