Gays Against Groomers v. Garcia

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 10, 2026
• Docket: 24-1473
• Status: Published

Opinion

Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH March 10, 2026 UNITED STATES COURT OF APPEALS Christopher M. Wolpert Clerk of Court FOR THE TENTH CIRCUIT _________________________________

GAYS AGAINST GROOMERS, a nonprofit corporation; ROCKY MOUNTAIN WOMEN’S NETWORK, an unincorporated association; RICH GUGGENHEIM, an individual; CHRISTINA GOEKE, an individual,

Plaintiffs-Appellants, No. 24-1473 v.

LORENA GARCIA, individually and in her official capacity as a Colorado State Representative; MIKE WEISSMAN, individually and in his official capacity as a Colorado State Representative and Chair of the House Judiciary Committee; LESLIE HEROD, individually and in her official capacity as a Colorado State Representative; JULIE GONZALES, individually and in her official capacity as a Colorado State Senator and Chair of the Senate Judiciary Committee; DAFNA MICHAELSON JENET, individually and in her official capacity as a Colorado State Senator,

Defendants-Appellees. _________________________________ Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 2

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:24-CV-00913-RMR) _________________________________

Endel Kolde (Brett R. Nolan and Courtney Corbello with him on the briefs), of the Institute for Free Speech, Washington, D.C., for Plaintiffs-Appellants.

Edward T. Ramey (Martha M. Tierney with him on the brief), of Tierney Lawrence Stiles LLC, Denver, Colorado, for Defendants-Appellees. _________________________________

Before CARSON, EBEL, and FEDERICO, Circuit Judges. _________________________________

FEDERICO, Circuit Judge. _________________________________

For millennia, deliberative bodies across the world have set their own

rules for debating matters of concern so that they may better affect the

public business with “order, decency, and regularity.” Thomas Jefferson,

Manual of Parliamentary Practice 18 (Jonathan Phillips 1848). 1 Today,

legislatures across the country are debating a matter of significant public

interest – the rights of transgender persons – within these broad

parameters. This appeal concerns not the substance of these debates, but

rather their procedural rules, and whether a federal court may inquire into

1 For a brief history of parliamentary practice, see generally George

Demeter, Demeter’s Manual of Parliamentary Law and Procedure 4–5 (Blue Book ed. 1969). 2 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 3

the lawfulness of those rules in a suit against legislators in their official

capacity. We hold that it may not.

Gays Against Groomers, Rocky Mountain Women’s Network, Rich

Guggenheim, and Christina Goeke (together “GAG”) sued Lorena Garcia,

Mike Weissman, Leslie Herod, Julie Gonzales, and Dafna Jenet (together

the “Legislators”) in their individual capacities and official capacities as

Colorado state legislators. GAG alleged that the Legislators violated their

First Amendment rights by promulgating and enforcing rules of decorum

that barred misgendering and deadnaming in legislative hearings. On

legislative immunity and mootness grounds, the district court granted the

Legislators’ motion to dismiss GAG’s complaint with prejudice and entered

final judgment. GAG timely appealed and, exercising our jurisdiction under

28 U.S.C. § 1291, we affirm.

Our opinion will begin first by describing the public hearings before

the Colorado General Assembly that led to this lawsuit. Second, we address

our own jurisdiction and hold that this case is not moot and remains

justiciable. Third, we hold that the Legislators are entitled to legislative

immunity. We therefore do not reach the merits of GAG’s constitutional

claims.

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I

Because we review a district court’s order dismissing the complaint

under Federal Rule of Civil Procedure 12(b)(6), we borrow the facts from the

complaint itself, taking the allegations as true and construing them in the

light most favorable to the plaintiffs. Alvarado v. KOB-TV, L.L.C., 493 F.3d

1210, 1215 (10th Cir. 2007).

According to the complaint, misgendering “is the act of referring to

others, usually through pronouns or form of address, in a way that does not

reflect their self-perceived gender identity.” J. App. at 24. For example,

referring to a transgender man with feminine pronouns and honorifics

would misgender him. Deadnaming “is the act of referring to a transgender

person by a name they used prior to ‘transitioning,’ such as their birth

name.” Id. So, for example, referring to a transgender man named John Doe

with his birth name Jane Doe would both deadname and misgender him.

For people who are transgender, these practices can be deeply offensive,

disrespectful, and perhaps discriminatory. For some other people,

expectations or rules against misgendering or deadnaming offend their

sincerely held belief that one cannot or should not hold a gender identity

that is inconsistent with sex assigned at birth. J. App. at 17–18 (plaintiffs

“personally reject transgender ideology”). These differing views converged

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at the Colorado General Assembly as it considered House Bill 24-1071, also

known as Tiara’s Law.

Gays Against Groomers is a national non-profit organization that

advocates policy positions related to LGBTQ+ rights and interests. As

relevant here, Gays Against Groomers opposes the use of concepts like

misgendering and deadnaming. Gays Against Groomers has an active

Colorado chapter that is headed by Rich Guggenheim. Rocky Mountain

Women’s Network is an unincorporated association of members who

advocate policy positions related to women’s rights. As relevant here, the

Network shares Gays Against Groomers’ opposition to the use of concepts

like misgendering and deadnaming. Christina Goeke co-founded the

Network and is an active Colorado member.

Mike Weissman, Lorena Garcia, and Leslie Herod are Colorado State

Representatives. Representative Weissman is the Chair of the House

Judiciary Committee, while Representatives Garcia and Herod are

members of the Committee. Julie Gonzales and Dafna Jenet are Colorado

State Senators. Senator Gonzales is the Chair of the Senate Judiciary

Committee and Senator Jenet is a member of the Committee. The

legislative body they serve, the Colorado General Assembly, provides

citizens with an opportunity to speak at public hearings on pending

legislation. These public hearings are regulated by House and Senate rules

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that authorize the committee chairs to remove people who are “impeding,

disrupting, or hindering a committee meeting.” Guide to Public Hearings,

Colo. Gen. Assembly House of Representatives, https://perma.cc/5L6L-

GRBQ; Guide to Public Hearings, Colo. Gen. Assembly Senate,

https://perma.cc/DGU2-WYCX. 2

During the 2024 session of the Assembly, the state legislature

considered Tiara’s Law. 3 Colorado law previously prohibited people who had

been convicted of a felony from changing their legal name except for “good

cause.” Colo. Rev. Stat. § 13-15-101 (West 2024). As introduced in the House

Judiciary Committee, the bill that became Tiara’s Law sought to clarify that

good cause exists when a change in legal name is sought to conform a

person’s name with their gender identity. H.B. 24-1071 § 1, 74th Gen.

Assemb., 2d Reg. Sess. (Colo. Jan. 10, 2024). The bill was later amended to

permit courts to require publication of a requested gender-affirming name

change when it is sought by someone who has been convicted of a felony. Id.

2 GAG refers to these permalinks in their complaint, and we are free

to consider documents that are central to the plaintiffs’ claims and referred to in the complaint. White v. Lucero, 135 F.4th 1213, 1219 (10th Cir. 2025) (quoting Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253– 54 (10th Cir. 2005)). 3 Tiara’s Law is referred to throughout GAG’s complaint. Again, we

are free to consider the bill as proposed and enacted since GAG referred to it in their complaint. White, 135 F.4th at 1219.

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§ 2 (Feb. 23, 2024). The bill as amended was ultimately passed by the House

and Senate of the Colorado General Assembly, signed by Governor Jared

Polis, and codified at Section 13-15-101 of the Colorado Revised Statutes.

2024 Colo. Legis. Serv. 348 (West). But prior to passage and over the course

of its legislative life, each chamber of the Assembly scheduled public

hearings to consider the bill in their respective judiciary committees.

Guggenheim and Goeke both sought to speak at these hearings.

On January 30, the Colorado House Judiciary Committee convened to

hear public testimony on the bill. Defendant Rep. Garcia addressed the

chair and thanked her colleagues for “not using derogatory language or

misgendering witnesses, or using a witness’s deadname.” J. App. at 25. 4 She

expressed “hope that the witnesses signed up to also testify will follow suit,

and engage in respectful discourse and share their perspectives and

4 The complaint alleges that this statement came from Defendant Sen.

Gonzales. But Sen. Gonzales is not a member of the House Judiciary Committee, and elsewhere, the complaint refers to Rep. Garcia’s closing statement at the end of the hearing. We think this is a scrivener’s error, and since it neither requires extrinsic evidence nor prejudices the parties to take notice of the error, we need not accept the error as true under Rule 12(b)(6). Cf. Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013) (“[F]actual allegations that contradict . . . a properly considered document are not well-pleaded facts that the court must accept as true.” (second alteration in original) (citation omitted)). Here, the naming errors contradict the complaint itself and the documents referred to by the complaint, all properly considered documents. White, 135 F.4th at 1219. For the remainder of this opinion, we overlook such errors.

7 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 8

opinions on this bill by not disparaging other members or our community or

other witnesses.” Id. Defendant Rep. Weissman, as Committee Chair,

“affirm[ed] and ratif[ied]” these comments. Id.

Guggenheim declined to testify under these conditions. Goeke,

however, proceeded to testify. During her testimony, she described Tiara

Kelley – the transgender woman after whom the bill is colloquially named

– as “an admitted former prostitute.” J. App. at 26. After she was

interrupted by the Committee Chair and advised to keep her testimony “to

the bill” and not “individual personalities,” Goeke responded that discussion

of Kelley was warranted because the “bill was literally named after him.” J.

App. at 26. Goeke’s comments referred to Kelley using masculine pronouns

and therefore misgendered her, contrary to the Committee’s policy. After

some further back and forth between Goeke and the Committee Chair,

escalated cross-talk between several persons in the hearing room, and an

interjection by Defendant Rep. Herrod, the Committee stopped Goeke’s

testimony and went into recess.

On March 27, the Colorado Senate Judiciary Committee also

convened to hear public comments on Tiara’s Law, where Goeke and

Guggenheim again wished to speak. Defendant Sen. Gonzales, as

Committee Chair, admonished witnesses that they would be removed “if

they failed to exhibit decorum, dignity, or respect.” J. App. at 29. Sen. Jenet

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also stated that witnesses should not misgender or deadname others, and

Sen. Gonzales agreed.

When it was Goeke’s turn to speak, she attempted to refer to Tiara

Kelley with masculine pronouns and a masculine name that Kelley had

previously held. The Committee Chair interrupted her and reminded her of

the rules that had been adopted at the onset of the hearing. 5 When Goeke

insisted that she would continue to use masculine pronouns and a previous

name to refer to Kelley, there was again some back and forth until the Chair

stopped Goeke’s commentary. Goeke alleges that her comments were later

removed from the official audio recording of the Senate Judiciary

Committee’s hearing.

Later, it was Guggenheim’s turn to speak. He attempted to explain

his view that Marsha P. Johnson and Sylvia Rivera (two major LGBTQ+

rights activists during the Stonewall Era) 6 were not transgender women but

rather gay men who were drag queens. After he was interrupted by the

Committee Chair and reminded not to deadname or misgender people, he

5 Again, this part of the complaint appears to mix up Rep. Garcia and

Sen. Gonzales and we overlook these errors. 6 For further explanation, see generally Kate Redburn, Before Equal

Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86, 40 L. & Hist. Rev. 679, 696 (2022).

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attempted to explain his view that Marsha P. Johnson and Sylvia Rivera

were not transgender and so he was not deadnaming or misgendering them.

Because the microphones were off during this interchange, the Committee

Chair could not hear him but allowed him to proceed after reminding him

of the rules. He later attempted to describe Tiara Kelley as a gay man

instead of a transgender woman, and the Committee Chair stopped his

comments.

The Senate Judiciary Committee has continued to remind people who

participate in legislative hearings on bills that touch on transgender rights

and interests that misgendering and deadnaming are not permitted by the

committee rules. And Goeke and Guggenheim both want to attend bill

hearings and provide comments consistent with their beliefs. At oral

argument, counsel for the Legislators affirmed that the Colorado General

Assembly would continue to implement these rules going forward. Oral Arg.

at 27:30.

II

In April 2024, GAG filed their complaint against the Legislators. They

alleged four claims for relief under 42 U.S.C. § 1983 and the U.S.

Constitution’s First and Fourteenth Amendments. First, they alleged that

the committees’ rules were impermissibly vague. Second, they alleged that

the rules constitute viewpoint discrimination. Third, they alleged that the

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erasure of Goeke’s comments from the public record for violation of the rules

constitutes viewpoint discrimination. Fourth, they alleged that the rules

constitute compelled speech. 7 GAG also requested a preliminary injunction

that would have barred enforcement of misgendering or deadnaming rules

and restored Goeke’s comments to the public record. Finally, GAG

requested relief from the district court’s local rules inviting “litigants,

witnesses, and counsel to share their ‘applicable pronouns’” and requiring

all parties to refer “to all other persons by their . . . applicable pronouns.”

J. App. at 165 (alteration in original) (citation omitted).

The Legislators moved to dismiss the complaint under Federal Rule

of Civil Procedure 12(b)(6), arguing that they were entitled to absolute

immunity, that GAG’s claims failed on the merits, and that their requests

for relief were moot. The Legislators also opposed GAG’s motion for a

preliminary injunction, largely on the same grounds. The Legislators chose

to “defer” to the district court with respect to GAG’s request for relief from

the local practice rule because it was unclear how, in a lawsuit against the

7 The concurrence concludes that GAG only challenged the enforcement of the decorum rules. Concurrence at 1. Although the complaint certainly challenged enforcement, it also challenged promulgation of the rules, as most evident by the complaint’s self-described facial challenge to the rules themselves. See, e.g., J. App. at 36 (second claim for relief).

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Legislators, application of the local rule would become an issue. J. App. at

194–95.

After the parties’ motions were fully briefed, the district court granted

the Legislators’ motion to dismiss. The district court held that the

challenged committee rules and conduct were “within the sphere of

legitimate legislative activity,” and so the Legislators were entitled to

absolute legislative immunity. J. App. at 243. The district court held that

even if the Legislators were not entitled to legislative immunity, however,

GAG’s requests for relief were moot because it was speculative that the

challenged rules would be applied to GAG again after the conclusion of the

General Assembly’s session. With the complaint dismissed, the district

court also denied as moot GAG’s motions for a preliminary injunction and

relief from the local practice rules. The district court entered final

judgment, and this timely appeal followed.

III

Generally, federal courts may “choose among threshold grounds for

denying audience to a case on the merits.” Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574, 585 (1999). Here, because the district court addressed both

mootness and legislative immunity, we do as well.

First, we conclude that GAG’s requests for relief under 42 U.S.C. §

1983 are not moot. GAG’s request for nominal damages is not moot because

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it is at least partially retrospective. And GAG’s request for injunctive and

declaratory relief is not moot because the Legislators have not disclaimed

an intent to engage in the challenged conduct again. Indeed, they have

confirmed that the challenged conduct will continue. GAG is therefore

subject to a future threat of injury and the case remains a live controversy.

Second, we hold that GAG’s claims are barred by legislative

immunity. Legislative immunity is available to the members of a legislative

body regardless of whether a lawsuit is styled as an “official capacity” or

“individual capacity” suit. And the establishment and enforcement of rules

of decorum for legislative proceedings fall within the sphere of legitimate

legislative activity. The Legislators are therefore entitled to legislative

immunity and GAG’s claims cannot proceed. We therefore affirm the

district court’s judgment.

A

Under Article III of the Constitution, federal courts may decide only

“cases” or “controversies.” U.S. Const. art. III, § 2. A case or controversy is

a live dispute between adverse parties over some concrete interest. Prison

Legal News v. Federal Bureau of Prisons, 944 F.3d 868, 879 (10th Cir. 2019).

A party seeking federal judicial relief must therefore demonstrate the

“irreducible constitutional minimum” for the existence of a case or

controversy: an injury-in-fact, traceable to the opposing party and

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redressable by a favorable decision of the court. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992). “An actual controversy must be

extant at all stages of review, not merely at the time the complaint is filed.”

Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016) (citation omitted).

“If an intervening circumstance deprives the plaintiff of a personal stake in

the outcome of the lawsuit, at any point during litigation,” the case becomes

moot, and with few exceptions, there is no controversy for a federal court to

decide. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (citation

and internal quotation marks omitted); Buhman, 822 F.3d at 1166–68

(discussing major exceptions). “Mootness deprives federal courts of

jurisdiction.” Buhman, 822 F.3d at 1165.

The requirements of Article III are “not dispensed in gross.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). We assess mootness

as to “each form of relief sought.” Prison Legal News, 944 F.3d at 880

(citation omitted). Requests for retrospective relief (like damages) rarely

become moot. Past injuries are not susceptible to alteration. Thus, “so long

as the plaintiff has a cause of action for damages,” the case remains live.

Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and

Human Resources, 532 U.S. 598, 608–09 (2001). Requests for prospective

relief (like injunctions) become moot when the party seeking relief is no

longer subject to a future threat of injury. Thus, a request for an “injunction

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becomes moot once the event to be enjoined has come and gone.” Citizen

Center v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014). Likewise, a request

for a declaratory judgment becomes moot when the requested judgment no

longer “affects the behavior of the defendant toward the plaintiff.” Rio

Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110

(10th Cir. 2010).

In general, we do not consider the merits of a plaintiff’s claims for the

purposes of assessing our Article III jurisdiction. Initiative & Referendum

Inst. v. Walker, 450 F.3d 1082, 1092–93 (10th Cir. 2006) (en banc). With

respect to First Amendment claims for prospective relief, which raise

unique forms of injury, we apply a disciplined framework for evaluating

standing and mootness to properly divorce our assessment of jurisdiction

from our review of the merits. Our cases establish that a plaintiff who

intends to engage in arguably protected conduct that is covered by the

challenged governmental action and who faces a credible threat of

enforcement has standing to bring a claim. Ward v. Utah, 321 F.3d 1263,

1267 (10th Cir. 2003). Generally, past enforcement, the widespread

authority to enforce, and disavowal of future enforcement are all factors we

take into consideration when evaluating whether a plaintiff faces a credible

threat of enforcement. Peck v. McCann, 43 F.4th 1116, 1132 (10th Cir.

2022).

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Here, as the district court acknowledged, GAG’s request for nominal

damages is at least partially retrospective, and so it is not moot.

Uzuegbunam v. Precsewski, 592 U.S. 279, 292–93 (2021). We disagree with

the district court, however, insofar as it found GAG’s request for prospective

relief moot. The Legislators have previously enforced the challenged rules

against GAG. GAG intends to continue to misgender and deadname

individuals in comments at the Colorado General Assembly. And counsel

for the Legislators confirmed they intend to enforce rules against

misgendering or deadnaming in the future. Oral Arg. at 27:30. GAG clears

what we have said “is not supposed to be a difficult bar for plaintiffs to clear

in the First Amendment pre-enforcement context.” Peck, 43 F.4th at 1133.

This case is not moot.

B

We turn now to a discussion of the alternative threshold basis upon

which the district court dismissed this case: legislative immunity. We begin

by recounting the general statutory framework from which this doctrine

was born.

The enforcement of constitutional rights against state officials is

largely a consequence of the Civil Rights Act of 1871, which authorizes wide

access to relief for “the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws” of the United States. 42 U.S.C.

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§ 1983. The Supreme Court has given § 1983 a broad construction in light

of its remedial purpose. Monell v. Department of Social Services of City of

New York, 436 U.S. 658, 685 (1978). Still, the reach of § 1983 is not

unlimited. The Court has long assumed that the unadorned text of § 1983

incorporates background rules of liability and immunity that mark the law’s

outer boundaries. Imbler v. Pachtman, 424 U.S. 409, 418 (1976) (reading

§ 1983 “in harmony with general principles of tort immunities and defenses

rather than in derogation of them”). Thus, for example, municipalities are

liable for constitutional violations only insofar as they directly “cause” a

constitutional violation, not for the violations of their employees. Monell,

436 U.S. at 692. States are not “persons” subject to suit under § 1983. Will

v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Police officers are

entitled to limited immunity from suit for actions taken in good faith.

Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). And in some cases, it is

assumed that Congress intended no relief whatsoever, entitling the

defendant to absolute immunity from suit. Id. at 807.

Legislators, exercising their legislative functions, are among those

defendants entitled to absolute immunity. Id. In the landmark case Tenney

v. Brandhove, the Supreme Court rejected the constitutional challenge of a

plaintiff who had been summoned by the California Senate’s Committee on

Un-American Activities, allegedly in retaliation for a petition he had

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circulated advocating against the committee. 341 U.S. 367, 370–72 (1951).

The Court traced the historic roots of the “privilege of legislators to be free

from arrest or civil process for what they do or say in legislative

proceedings” all the way back to the English Bill of Rights. Id. at 372. “We

cannot believe,” explained the Court, “that Congress – itself a staunch

advocate of legislative freedom – would impinge on a tradition so well

grounded in history and reason by covert inclusion in the general language”

of § 1983. Id. at 376. Thus, the conduct of legislators that is within “the

sphere of legitimate legislative activity” is absolutely immune from judicial

inquiry. Id.; see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503–

05 (1975) (discussing the scope of legitimate legislative activity); Harlow,

457 U.S. at 807 (“The absolute immunity of legislators, in their legislative

functions, . . . now is well settled.” (citations omitted)).

This legislative immunity extends not only to damages suits, but also

to requests for injunctive or declaratory relief. The Supreme Court held in

Supreme Court of Virginia v. Consumers Union of U.S., Inc., that although

“Tenney involved an action for damages under § 1983, its holding is equally

applicable to § 1983 actions seeking declaratory or injunctive relief.” 446

U.S. 719, 732 (1980). The Court explained that Tenney did not by its own

terms “distinguish between actions for damages and those for prospective

relief.” Id. at 733. And reading such a distinction into Tenney would

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undermine the very policy concerns that justified the Tenney doctrine: the

risk that civil liability would “create a distraction and force legislators to

divert their time, energy, and attention from their legislative tasks to

defend the litigation.” Id. (citation modified) (quoting Eastland, 421 U.S. at

503).

In the district court, the Legislators asserted absolute immunity in

their motion to dismiss and their response to GAG’s motion for a

preliminary injunction. They argued that “everything occurred wholly

within the context of two formal legislative committee meetings convened

specifically and exclusively for the purpose of obtaining public comment on

the merits of a piece of pending legislation – and for no other purpose.” J.

App. at 180. This, the Legislators argued, is wholly within the ambit of

absolute legislative immunity.

In response, GAG argued that “legislative immunity is a personal

defense not applicable to official-capacity claims for declaratory and

injunctive relief.” J. App. at 199. Additionally, GAG argued that the

Legislators’ enforcement activity – namely their termination of the

individual GAG plaintiffs’ time for comment and the removal of Goeke’s

comments from the public record – is not entitled to legislative immunity.

Finally, GAG pressed that administering “censorship” at public hearings is

not protected by legislative immunity. J. App. at 202.

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The district court rejected GAG’s arguments down the line. First, the

district court explained that while the nature of the suit as an official

capacity suit may be relevant for sovereign immunity purposes, it did not

defeat the applicability of the “completely distinct” legislative immunity

doctrine. J. App. at 237. Second, the district court held that the Legislators’

conduct was sufficiently related to the “legislative function of overseeing

public testimony on pending legislation and gathering relevant information

and input from the public” to warrant absolute legislative immunity. J. App.

at 242. The district court therefore granted the Legislators’ motion to

dismiss.

On legislative immunity, we agree with the district court. First, the

district court was correct to disregard the distinction between official

capacity and individual or personal capacity suits for the purposes of

absolute legislative immunity. Legislative immunity remains available to

legislators acting within their legislative capacity regardless of whether

they are sued in their individual or official capacity. Second, the Legislators’

conduct here – both the adoption of the misgendering and deadnaming rules

as well as the implementation of those rules within the context of legislative

hearings – falls within the sphere of legitimate legislative activity.

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As we previously observed, states themselves are not proper subjects

of § 1983 lawsuits. Will, 491 U.S. at 67. This is because, as the Supreme

Court has explained, Congress did not intend to override the states’ historic,

well-rooted, and structurally vital entitlement to sovereign immunity from

suit, reflected in the Eleventh Amendment. Id.; Hans v. Louisiana, 134 U.S.

1, 10 (1890). 8 But because all sovereigns operate through the actions of their

officers, it has likewise been long understood that state officials are also

entitled to the benefit of sovereign immunity as arms of the state. Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).

Sovereign immunity would be meaningless otherwise. Thus, “a suit against

a state official in his or her official capacity is not a suit against the official

but rather is a suit against the official’s office[.] As such, it is no different

from a suit against the State itself.” Will, 491 U.S. at 71 (internal citation

omitted). Such suits are ordinarily barred by sovereign immunity.

The major and relevant exception to this rule is that suits for

prospective relief against officials, acting in their official capacity, are not

barred by sovereign immunity. Id. at 71 n.10. “[O]fficial-capacity actions for

8 Of course, as the Supreme Court simultaneously observed, Congress

“undoubtedly” could override the states’ sovereign immunity pursuant to its power under § 5 of the Fourteenth Amendment to enforce constitutional protections. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989).

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prospective relief are not treated as actions against the State.” Kentucky v.

Graham, 473 U.S. 159, 167 n.14 (1985). Since the seminal case Ex Parte

Young, federal courts have exercised the power to adjudicate requests for

prospective relief against state officials acting in their official capacity for

well over a century. 209 U.S. 123 (1908). But while this exception to the

usual rule of sovereign immunity is important and often deployed in the

context of constitutional challenges, it also has limits. In Whole Woman’s

Health v. Jackson, for example, the Supreme Court declined to extend the

scope of Ex Parte Young to permit injunctive relief against state court

judges and their clerks because to do so “would be a violation of the whole

scheme of our Government.” 595 U.S. 30, 39 (2021) (quoting Ex Parte Young,

209 U.S. at 163); see also id. at 42 (distinguishing Pulliam v. Allen, 466 U.S.

522 (1984), as addressing the “distinct doctrine of judicial immunity”).

Like the district court, we do not understand the Ex Parte Young

exception to authorize injunctions against state legislators acting in their

legislative capacity. To begin with, the scope of Ex Parte Young is generally

construed in light of historic equitable traditions, which, like § 1983,

incorporate the principle of legislative immunity. Cf. id. at 39 (examining

interaction between Ex Parte Young and historic tradition against enjoining

judges).

22 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 23

Additionally, § 1983 and Ex Parte Young are distinct sources of

liability and immunity. Legislators are “absolutely immune from liability

under § 1983 for their official acts because that immunity was well

established at common law in 1871,” Ziglar v. Abassi, 582 U.S. 120, 157

(2017) (Thomas, J., concurring in part), whereas Ex Parte Young is an

exception to Eleventh Amendment sovereign immunity. As the district

court noted, the fact that the Eleventh Amendment may not protect the

Legislators from injunctive relief tells us nothing about whether they are

liable under § 1983. And here, the Supreme Court’s decision in Consumers

Union resolves the latter question: “[a]lthough Tenney involved an action

for damages under § 1983, its holding is equally applicable to § 1983 actions

seeking declaratory or injunctive relief.” 446 U.S. at 732; see also Erwin

Chemerinsky, Absolute Immunity: General Principles and Recent

Developments, 24 Touro L. Rev. 473, 476 (2008) (“Also, legislators have

absolute immunity for injunctions for legislative functions.”). Thus,

whether legislative officials are sued in their official or individual capacity,

whether the relief sought is prospective or retrospective, so long as they are

sued for their exercise of a legislative function, they are entitled to absolute

legislative immunity.

GAG resists this conclusion by pointing to one of our prior cases, Sable

v. Myers, 563 F.3d 1120 (10th Cir. 2009). In Sable, we considered an

23 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 24

individual’s claim that a decision by a local government body to condemn

his property was made in violation of the First Amendment. Id. at 1123. He

sued city council members for damages, and the city council members raised

legislative immunity as a defense. Id. The district court rejected the defense

of absolute immunity, and we reversed. Id. at 1123, 1127. We applied a

“broad view of legislative immunity” and held that the relevant conduct fell

within the scope of legitimate legislative activity. Id. at 1125–26. We did

not address the kind of argument that GAG raises here.

Nonetheless, GAG points to our statement that legislative immunity

applies “only to legislators sued in their individual capacities, not to the

legislative body itself” to authorize injunctions against legislators. Id. at

1123. We think this one sentence is far too thin a reed upon which to rest

so heavy an argument. We do not read this language in Sable as addressing

a distinction between official capacity claims and individual or personal

capacity claims.

Instead, the Sable court was clarifying that while “individual”

legislators are entitled to absolute immunity under § 1983, entities that are

not natural persons (or individuals in the colloquial sense) like state

agencies or local bodies must rely on some other doctrine of liability or

immunity to defend themselves. See, e.g., Monell, 436 U.S. at 694

(municipalities not liable under theories of respondeat superior); Mt.

24 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 25

Healthy, 429 U.S. at 280 (arms of the state are entitled to sovereign

immunity). Indeed, the sentence from Sable that GAG relies upon cites to a

Fifth Circuit case, Minton v. St. Bernard Parish Sch. Bd., that makes this

same point. 803 F.2d 129, 133 (5th Cir. 1986). Further, in Sable, we consoled

the losing plaintiff-appellee by pointing out that although we had rejected

his attempt to hold city council members individually liable, the city itself

might have been “subject to suit under § 1983.” 563 F.3d at 1127.

If we were to read this one sentence in Sable any other way, we would

functionally upend the doctrine of legislative immunity and the interests it

protects. Recall that GAG is not arguing at this juncture that the

Legislators’ conduct falls outside the scope of legislative immunity, but that

legislative immunity does not apply at all to GAG’s request for injunctive

or declaratory relief. GAG’s theory lacks any limiting principle. It would

permit a legislator to be enjoined from voting for a particular piece of

legislation, based on a federal court’s ex ante view that the unenacted bill

is unconstitutional, even though voting for the bill is quintessentially

legislative, solely because the plaintiff sought an injunction rather than

damages. We think such extreme possibilities were far outside the scope of

issues decided in Sable, and we foreclose such possibilities today. We thus

join all our sister circuits that have considered the issue in holding that

prospective relief is not available against a legislative official performing a

25 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 26

legislative function. Cushing v. Packard, 30 F.4th 27, 39–40 (1st Cir. 2022);

State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 82–88 (2d Cir.

2007); Scott v. Taylor, 405 F.3d 1251, 1255 n.6 (11th Cir. 2005). GAG points

us to no contrary authority.

GAG instead relies on several isolated statements by the Supreme

Court reiterating that personal defenses are only available to a defendant

sued in their personal, not official, capacity. Graham, 473 U.S. at 167; Hafer

v. Melo, 502 U.S. 21, 25 (1991); Board of County Commissioners v. Umbehr,

518 U.S. 668, 677 n.* (1996). But GAG takes these statements out of their

relevant context. Graham involved attorneys’ fees under 42 U.S.C. § 1988

in personal-capacity actions. 473 U.S. at 161. Hafer addressed whether

state officials are “persons” within the meaning of § 1983. 502 U.S. at 23.

And Umbehr was a case involving local government officials who were not

explicitly understood to benefit from legislative immunity until two years

later. Compare 518 U.S. at 677 n.* (1996), with Bogan v. Scott-Harris, 523

U.S. 44, 52–54 (1998). Together, although these cases involved some

distinction between official and personal capacity actions, none of them

squarely addressed absolute immunity, much less legislative immunity, and

even less so whether legislative immunity remains available in an official

capacity suit for prospective relief.

26 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 27

On this point, we find persuasive the First Circuit’s explanation in

Cushing that Consumers Union foreclosed suits for prospective relief

against legislators acting in their official capacity. Cushing, 30 F.4th at 39.

Although the Supreme Court did not use the term “official capacity,” the

Venn diagram of official-capacity suits versus suits for prospective relief is

essentially a circle. Id. (“Against this backdrop, we fail to see why we must

treat the plaintiffs’ claims . . . as if they are not what they purport to be[.]”).

So we can safely conclude that, because the distinction between official and

personal capacity suits was still nascent at the time Consumers Union was

decided, see Graham, 473 U.S. at 165, the Supreme Court intended the

legislative immunity doctrine to apply howsoever the case is captioned.

The Court’s subsequent dicta in the varied contexts argued by GAG is

insufficient to relieve us of applying the more specific and controlling

holding of Consumers Union. 9 Any argued or perceived inconsistency

between Consumers Union and the Supreme Court’s other cases is for the

Supreme Court to clarify, not us. Rodriguez de Quijas v.

Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) (“If a precedent of

9 Graham approvingly cited and discussed Consumers Union in one

part of its opinion, but did not acknowledge it at all in the part of the opinion that GAG relies most heavily on. Kentucky v. Graham, 473 U.S. 159, 164, 167 (1985). It would be an extraordinary interpretation of Graham, then, to read it as implicitly overturning Consumers Union. 27 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 28

this Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should follow

the case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.”).

Distinguishing between official capacity and personal capacity suits

for the purposes of legislative immunity would eviscerate the Supreme

Court’s holding in Consumers Union. Lacking the authority to do this, we

hold that legislative immunity is available to legislators acting in their

28 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 29

legislative capacity, regardless of the relief sought or the nature of the

suit. 10

Having decided that legislative immunity is available to legislators

sued in either their individual or official capacities, we now turn to whether

it applies to the Legislators here. The applicability of legislative immunity

“turns on the nature of the act, rather than on the motive or intent of the

10 Our holding today is limited to the interpretation of § 1983 and whether the doctrine of absolute legislative immunity that has been implicitly codified in that statute authorizes prospective relief. We do not address other civil rights remedies that Congress has provided, each of which has their own interpretative jurisprudence. See, e.g., Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012) (addressing claim arising under the Americans with Disabilities Act). Thus, while we cite approvingly the First Circuit’s decision in Cushing v. Packard, 30 F.4th 27 (1st Cir. 2022) (en banc), our discussion of that case should not be read to adopt wholesale its ultimate holding that legislative immunity forecloses relief under the ADA.

Likewise, our holding today does not disturb the accepted wisdom of permitting federal courts to inquire into legislative motive where appropriate and where the relief sought is not against the legislators themselves, subject to a separate legal framework. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 (1977) (“In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.”); see also Jefferson Community Health Care Centers, Inc. v. Jefferson Parish Government, 849 F.3d 615, 624 (5th Cir. 2017) (“While the common-law legislative immunity for state legislators is absolute, the legislative privilege for state lawmakers is, at best, one which is qualified.” (internal quotation marks and citation omitted)).

29 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 30

official performing it.” Bogan, 523 U.S. at 54. In Bogan, the Court identified

several nonexhaustive factors for identifying immunized legislative

activity, like the “discretionary, policymaking” nature of the act, the

“prospective implications” of the act, and whether the act occurred “in a

field where legislators traditionally have power to act.” Id. at 55–56.

Moreover, the Supreme Court has extended legislative immunity to officials

who are not themselves legislators so long as the suit seeks relief against

the exercise of legislative power, underscoring that it is function, not

person, that confers immunity. Consumers Union, 446 U.S. at 731–34. Thus,

the Court has held that voting in favor or against legislation is “in form,

quintessentially legislative.” Bogan, 523 U.S. at 55. An executive official

who formally introduces legislation is entitled to legislative immunity, even

though she is not a member of the legislative branch. Id. And

“[i]nvestigations, whether by standing or special committees, are an

established part of representative government,” and so officials are entitled

to legislative immunity for acts done in furtherance of legislative fact-

finding. Tenney, 341 U.S. at 377.

We conclude that these precedents dictate that both the Legislators’

adoption and their enforcement of the committee rules are within the

sphere of legitimate legislative activity.

30 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 31

With respect to the adoption of the committee rules, we set aside

GAG’s argument and allegations that the rules are unconstitutional,

unlawful, or improper. Instead, we ask whether the adoption of these

particular rules, like other committee rules, falls within the broad

legislative tradition. We conclude that it does.

The promulgation of these rules was the exercise of a “discretionary,

policymaking” function. The rules are also prospective in that they apply to

a broad set of people and commentors, not just the plaintiffs-appellants

here, and will continue to do so. Cf. Bi-Metallic Inv. Co. v. State Bd. of

Equalization, 239 U.S. 441, 445 (1915) (identifying the general nature of a

“rule of conduct” that “applies to more than a few people” as a legislative

characteristic). And the adoption of the rules occurred “in a field where

legislators traditionally have power to act.” Bogan, 523 U.S. at 56 (quoting

Tenney, 341 U.S. at 379). “Investigations, whether by standing or special

committees, are an established part of representative government,” Tenney,

341 U.S. at 377, and as we understand its arguments, GAG never contests

that legislatures must be able to adopt rules for those investigations.

Historically, those rules have included wide-ranging prohibitions on honest,

31 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 32

protected expression. 11 The adoption of the rules “were legislative because

they were integral steps in the legislative process.” Bogan, 523 U.S. at 55.

It follows, as night the day, that in the circumstances here, the

Legislators’ enforcement of the committees’ rules was also a quintessential

legislative activity. The entire purpose of adopting committee rules was to

govern conduct at legislative hearings. That adoption would be meaningless

if legislators, as the ones overseeing such hearings, could not enforce those

rules in the very forum they were designed for. If Tenney upheld the use of

the subpoena power to compel attendance to the California Legislature’s

committee hearings, we cannot see how the Colorado Legislators’ much

more limited actions here – ending the speaking time early for certain

speakers and allegedly removing certain comments from the legislative

record – can be denied the benefit of legislative immunity consistent with

Tenney.

GAG relies principally on Consumers Union, where the Supreme

Court did draw a distinction between the Supreme Court of Virginia’s

11 Thus, for example, a member of Congress that calls a colleague a

liar, a hypocrite, or a racist might engage in protected expression, but they may also violate long-standing rules on decorum. See, e.g., Gail E. Baitinger, Words Taken Down: Calling Members to Order for Disorderly Language in the House, Cong. Rsch. Serv. at 7–22 (Aug. 13, 2019), available at https://www.congress.gov/crs-product/R45866#_Toc16776221 (tables of historic examples of rules violations in the U.S. House).

32 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 33

adoption of disciplinary rules (immune) and enforcement of them (not

immune). 446 U.S. at 734–37. The Court drew this distinction to implement

the contours of legislative immunity: a legislator is immune for actions

taken within the sphere of legislative activity, but enforcement is generally

an executive, not legislative function. But we do not think this distinction

stands for the broad proposition that GAG argues we should adopt.

The Consumers Union distinction reflects the fact that state and local

bodies, free from the constraints of federal separation of powers principles,

can and often do exercise mixed legislative, judicial, and executive

functions. But the Supreme Court has repeatedly explained – indeed, nearly

all of federal administrative law is based on this explanation – that a

function can look legislative, but still be essentially executive. See, e.g.,

Whitman v. American Trucking Associations, 531 U.S. 457, 475 (2001).

Likewise, an action that looks executive may in fact be legislative. Cf.

Trump v. Mazars USA, LLP, 591 U.S. 848, 862–63 (2020) (distinguishing

between legitimate Congressional subpoenas for a “valid legislative

purpose” and illegitimate Congressional subpoenas for law enforcement

purposes).

As above, so below: Consumers Union does no more than apply this

federal principle to the state legislative immunity context. Just as the

federal principle allows Congress to impose certain penalties for violating

33 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 34

its legislative rules without finding that Congress has impermissibly

exercised executive power, so too does the doctrine of legislative immunity

permit state legislatures to impose certain limited, historically applied

remedies for violating committee rules.

Taking each of GAG’s allegations of impermissible enforcement

separately – the early termination of time to speak at a legislative hearing

and removal of comments from the official legislative record – we believe

each is amply insulated from judicial scrutiny. The legislature’s time is its

own. The Legislators’ interruption of and early termination of Goeke and

Guggenheim’s time to speak no more exceeded the legislative function than

a judge exceeds the judicial function by interrupting or cutting off counsel

during oral argument.

Similarly, the legislature is entitled to decide how its proceedings are

officially recorded, and the penalties imposed here appear uniquely

legislative. We would not expect to find Colorado executive and judicial

officers injecting themselves into the legislative process to decide who

speaks for how long and what goes into the legislative record. Those

decisions belong peculiarly to members of the Colorado General Assembly.

The Legislators are therefore entitled to absolute immunity for enforcing

the committee rules at the hearings those rules were meant to govern, as

they did here.

34 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 35

This might have been a different case if the Legislators were

empowered to seek civil damages, conduct criminal prosecution, see

Kilbourn v. Thompson, 103 U.S. 168 (1880), or ban the plaintiffs from ever

speaking at the Colorado General Assembly again. This latter example was

the case in Kamplain v. Curry County Board of Commissioners, another

case that GAG relies upon. 159 F.3d 1248 (10th Cir. 1998).

In Kamplain, we held that a county board’s “ban of Plaintiff from

attending Commission meetings and its subsequent decision to prohibit

Plaintiff from speaking at or participating in meetings were administrative

acts” not entitled to legislative immunity. Id. at 1252. The breadth of this

penalty, unconnected from the investigation of any particular issue, led us

to conclude that it was fundamentally non-legislative because legislatures

do not ordinarily exercise such broad power to punish. Id. But we

specifically disclaimed any ruling on “the Board’s ejection of Plaintiff from

the public meeting,” a narrower and more particularized form of

enforcement. Id. We think the Legislators’ actions here are much narrower

than those at issue in Kamplain and therefore within the scope of legislative

35 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 36

immunity. 12 We could not reconcile Kamplain with Tenney if we were to

conclude otherwise.

IV

When Tenney was decided well over half a century ago, Justice

Douglas foresaw that it could have unseemly applications. 341 U.S. at 383

(Douglas, J., dissenting) (“Yet now we hold that no matter the extremes to

which a legislative committee may go it is not answerable to an injured

party under the civil rights legislation.”). But the Supreme Court perceived

powerful reasons to shield the legislative process from judicial inquiry

nonetheless: more than merely the risk of distracting legislators from their

duties, fundamental principles of federalism and the separation of powers

were key to the outcome in Tenney. Id. at 377 (it is “not consonant with our

scheme of government for a court to inquire into the motives of legislators”).

We faithfully apply those principles today.

12 Like the concurrence, we apply a distinction between promulgation

and enforcement for the purposes of legislative immunity. We do not hold, however, that immunity for enforcement actions automatically or always follows from immunity for other acts. Concurrence at 3. We hold only that the narrow enforcement actions alleged here are sufficiently legislative in character that they fall within the scope of the immunity doctrine. Per the Bogan factors, what matters is whether the nature of the action (enforcement or otherwise) is such that it is no longer legislative. But if that analysis reveals a legislative act, the defendants are entitled to absolute immunity and the curtain must fall on the plaintiffs’ case.

36 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 37

The legislative process is inherently political, and therefore not easily

amenable to federal judicial inquiry. People injured by this process are

generally not free to sue legislators for their legislative acts. “Their rights

are protected in the only way that they can be in a complex society, by their

power, immediate or remote, over those who make the rule.” Bi-Metallic,

239 U.S. at 445. The doctrine of legislative immunity forecloses our inquiry

into the merits of the Legislators’ actions here, and so the district court’s

judgment is AFFIRMED. Because we affirm the district court’s dismissal of

GAG’s complaint, we likewise affirm the district court’s denial of GAG’s

motions for a preliminary injunction and relief from the local rules on

mootness grounds. 13

13 We are unsure by what device, if any, we are empowered to review

the district court’s local practice rules. GAG’s appeal from the denial of its motion for relief from the local rules might well be susceptible to dismissal, rather than affirmance. But since we may “choose among threshold grounds for denying audience” to this aspect of the appeal, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999), we think it simpler to affirm on mootness grounds. Our affirmance should not be read to indicate, however, that the appeal of that issue is properly before us. 37 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 38

Gays Against Groomers v. Garcia, No. 24-1473

CARSON, Circuit Judge, concurring in parts II, III-A and III-B-1 and concurring in the

judgment:

Although the founders created our divided system of government with checks and

balances in mind, they did not design the system for federal courts to police the internal

workings of legislatures—state or federal. And this case at its core involves the internal

workings of a state legislature. For that reason, I agree with the majority that, in this

case, the legislators have immunity. But I cannot join the majority opinion in its entirety.

The heart of this case is the distinction between enforcing rules of decorum and

promulgating rules of decorum. The majority begins its opinion by saying that “GAG

alleged that the Legislators violated their First Amendment rights by promulgating and

enforcing rules of decorum that barred misgendering and deadnaming in legislative

hearings.” I read the Complaint differently. Although Plaintiffs certainly took issue with

the content of the rules, the Complaint’s various causes of action alleged the Legislators

violated their constitutional rights by enforcing, not by promulgating, the rules of

decorum. And that distinction matters.

Whether we extend legislative immunity depends on the nature of the action

undertaken. Importantly, this analysis is granular enough to capture distinctions in

actions involving the same legislative acts—including the difference between

promulgating and enforcing a legislative act. We see this in multiple legislative

immunity cases. See Gravel v. United States, 408 U.S. 606, 618–22 (1972) (discussing

cases).

1 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 39

For instance, in Kilbourn v. Thompson, the “House Members who had adopted a

resolution authorizing” an arrest received legislative immunity, yet “the resolution was

subject to judicial review insofar as its execution impinged on a citizen’s rights.” Id. at

618 (discussing Kilbourn v. Thompson, 103 U.S. 168 (1881)). Similarly, in Dombrowski

v. Eastland, legislative immunity protected a subcommittee chairman who sought to

obtain records for a committee proceeding, but not the committee counsel involved in

“carry[ing] out an illegal seizure of” those records. Id. at 619 (citing Dombrowski v.

Eastland, 387 U.S. 82, 84 (1967)). And in Powell v. McCormack the Court extended

immunity to House Members who enacted an “illegal legislative act” that excluded a

representative-elect, yet the Court “afford[ed] relief against House aides seeking to

implement” those acts. Id. at 620 (discussing Powell v. McCormack, 395 U.S. 486

(1969)). 1

As the Court explained, these differential grants of immunity between

promulgating and executing legislative acts “reflect[] a decidedly jaundiced view towards

extending [immunity] so as to privilege illegal or unconstitutional conduct beyond that

1 Each of these cases involves federal officials subject to the Speech or Debate Clause of the Constitution, see Kilbourn, 103 U.S. at 204; Dombrowski, 387 U.S. at 83; Powell, 395 U.S. at 501–06, which mandates that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art I, § 6. Although the Speech or Debate Clause does not apply to state legislators, see Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 404– 05 (1979), their “common-law immunity from liability” is “similar in origin and rationale.” Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 731–32 (1980). These cases are relevant to the state legislative immunity at issue here, then, because this immunity “for purposes of § 1983 has been patterned after immunity under the Speech or Debate Clause.” Dennis v. Sparks, 449 U.S. 24, 30 (1980) (citing Consumers Union, 446 U.S. at 732–34). 2 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 40

essential to foreclose executive [or judicial] control of legislative speech or debate and

associated matters . . . .” Id. at 620. It does not matter that “protecting the rights of

others may . . . to some extent frustrate[] a planned or completed legislative act,” what

matters is whether a court can provide judicial relief from the unconstitutional conduct

“without proof of a legislative act or the motives or purposes underlying such an act” and

without threatening legislative independence. Id. at 621.

Under this case law, the majority’s reasoning that legislative immunity extends to

the enforcement of the challenged rule because a rule’s adoption is meaningless “if

legislators, as the ones overseeing such hearings, could not enforce those rules in the very

forum they were designed for” is unpersuasive. As an initial matter, this overstates the

necessary result of permitting judicial review of legislative rules like the rule at issue

here. Legislators would remain free to enforce rules that do not violate constitutional

rights. And to the extent relief is afforded against a rule as-applied, legislators would

remain free to enforce that rule as a general matter. But regardless, judicial review is

available even where it may “frustrate[] a planned or completed legislative act.” Gravel,

408 U.S. at 621. Legislative immunity protects legislative independence, Sup. Ct. of Va.

v. Consumers Union of U.S., Inc., 446 U.S. 719, 731–32 (1980), it does not entitle

legislators to the fruits of their unconstitutional conduct. 2

2 Plaintiff’s Complaint demonstrates why judicial review in this case would require “proof of a legislative act or the motives or purposes underlying such an act” and threaten the Colorado legislature’s independence in considering pending legislation before it. See Gravel, 408 U.S. at 621. The legislative rule at issue applies to “public comment on pending legislation.” Plaintiffs would have us find that Defendants have “enforced the rule in a selective, subjective, and viewpoint-discriminatory manner,” that 3 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 41

As discussed above, the Court permitted judicial review of the arrest in Kilbourne

and the exclusion of the representative-elect in Powell even though relief rendered the

protected—yet unconstitutional—legislative acts in those cases meaningless. So too

would judicial relief be available here if such relief did not interfere with legislative

independence, regardless of whether relief would frustrate the protected, but potentially

unconstitutional, promulgation of the legislative rule. Thus, although I agree that

legislative immunity applies to the enforcement actions in this case, I disagree with the

majority opinion’s suggestion that this immunity follows from the fact that the

legislatively immune act would be meaningless if we did not allow for its

unconstitutional enforcement.

In conclusion, this case is about whether a legislative body can, without being

subject to suit, compel or prohibit speech when it allows commentary on pending

legislation. We conclude, as required by precedent, that it can. But, make no mistake,

the panel’s opinion is far reaching. The opinion allows legislative bodies to create rules

under the guise of decorum that essentially silence opposition in legislative hearings. Are

Defendants’ “custom, policy, or practice” is to apply their decorum rule “in ways that discriminate against dissenters from trans ideology” and “compels citizens to mouth support for trans ideology,” that the rule is “not designed to confine the forum to the limited and legitimate purpose for which it was created, but rather, to suppress ideologies and opinions,” and that Defendants censored Plaintiffs in an “Orwellian fashion.” Judicial review of Defendants’ enforcement activity based on these allegations would necessitate an inquiry into the Defendants’ motives in conducting a committee hearing on pending legislation. Relief might require us to enjoin this activity based on Defendants’ views on pending legislation. Relief might also see us force the Colorado legislature to consider views and ideologies before voting on pending legislation. Such inquiries and interventions into the legislative process pose too great a risk to legislative independence, requiring immunity in this case. 4 Appellate Case: 24-1473 Document: 35-1 Date Filed: 03/10/2026 Page: 42

the people whose opinions are excluded in such an instance left with the ballot box as

their only remedy? Likely so. Although it troubles me that a legislative body can

effectively silence speech and leave the party whose speech is compelled or prohibited

without a judicial remedy, the relevant authorities allow it. And the result in favor of one

viewpoint in this case will apply equally if a legislative body in another state flips the

script and allows only the opposite viewpoint to be expressed in its hearings. But the

legislative immunity doctrine purposely imposes harsh consequences—even when a party

would otherwise have a meritorious claim.

For these reasons, I respectfully concur in part and concur in the judgment.