Proposition 135 passes: Lawmakers can start rewriting it in January

By Shaina Cole | Contributing Writer, Rocky Mountain Voice

Colorado voters approved Proposition 135 on Tuesday, barring surgery on minors to alter biological sex characteristics and barring public money and insurance from paying for it. The law takes effect Jan. 1, 2027.

Lawmakers do not return to the Capitol until Jan. 11, according to the deadline schedule Legislative Council Staff prepared in August.

So the ban is in force for ten days before lawmakers can touch it.

Because 135 changes statute rather than the constitution, the General Assembly can amend it with a simple majority. Attorney General Phil Weiser, the Democrat who won Tuesday’s race for governor, said he expects the legislature to look closely at the new law.

The measure passed with 52.03 percent, 1,338,255 to 1,233,751, a margin of 104,504 in the Secretary of State‘s count last updated at 10:39 p.m. MST Thursday. The Associated Press called it approved at 9:24 a.m. MST Friday, the Colorado Sun reported.

What the measure bans

The certified text adds section 12-30-125 to the Colorado Revised Statutes under the short title the Protect Children From Irreversible Sex Change Surgery Act.

The prohibition is written around purpose, not procedure. It lists no operations. A health care professional or other person may not knowingly perform, prescribe, administer or provide any surgery to a minor “for the purpose of altering biological sex characteristics,” which the measure defines as treatment in response to a minor’s perception of sex or gender.

A minor is anyone under 18.

Three things are carved out. Male circumcision, treatment for people born with a medically verifiable disorder of sex development and treatment for acquired physical or chemical abnormalities.

Non-surgical gender-related care is untouched. Social transition and counseling are not restricted.

Then there is the money. No state or federal funds, Medicaid reimbursements or insurance coverage may be used to pay for a prohibited surgery. Before the measure, those surgeries could be covered by private insurance or a public health care program, or paid out of pocket, when they were medically necessary, according to the Blue Book.

The text sets no penalty

Section 12-30-125 creates a prohibition and a funding ban. The measure itself sets no fine, no criminal charge and no private right of action. It carries a severability clause and nothing else on enforcement.

That work falls to the Department of Regulatory Agencies, which regulates health care professionals and insurers. Legislative Council Staff expects the agency to update its rules and materials and to handle complaints if a prohibited surgery is performed or paid for.

The Blue Book’s fiscal impact section calls the cost minimal.

Why the proponents wrote it

The measure opens with a legislative declaration, which is the proponents’ own statement of purpose and is part of the text voters approved.

It says children lack the maturity to make permanent, life-altering medical decisions. It says surgery attempting to alter a minor’s biological sex often results in serious irreversible consequences including sterility. It says European nations including Sweden, Finland and the United Kingdom have halted the surgery because of what it calls serious and widespread harm.

It closes by comparing the restriction to limits Colorado already sets on minors for alcohol and smoking.

Erin Lee and Michelle Austin filed the initiative as designated representatives, the same pair behind Propositions 133 and 134.

“With the passage of Proposition 135, Colorado voters have delivered a clear message: protecting children from irreversible sex-change surgeries transcends party lines,” Lee told the Sun by text Friday. “Children deserve the chance to grow up with healthy, intact bodies, and a majority of Colorado voters agree that these life-altering decisions should be reserved for adulthood.”

What opponents argued

Opponents’ claims about the two measures did not hold up against the text. RMV checked both against the certified language in an October fact check.

The Blue Book’s arguments-against section calls the measure an “overly broad ban” and says the purpose-based standard “could lead to uncertainty for patients, physicians, and insurers.” It says insurers may use the ban to limit coverage for a wide variety of treatments, and that doctors may reduce the care they are willing to provide for fear of legal repercussions.

Legislative Council Staff also wrote that the measure “may also limit other surgeries for minors, including non-transgender minors, if the treatment is interpreted as being in response to the minor’s sex or gender perception.”

The text answers part of that. RMV made both points before the vote.

The prohibition reaches only someone who acts knowingly. The exceptions cover treatment for acquired physical or chemical abnormalities.

Before the election, Colorado hospitals would not say which of their own procedures the ban would reach, the Sun reported.

One Colorado said both measures had been approved in a news release dated Thursday, a day before AP called 135.

“This outcome is painful, and it will have real consequences for young people and families across our state,” said Nadine Bridges, the group’s executive director.

The winning side was outspent

Families Not Politics, the main committee against 134 and 135, reported $3,206,460 in cash and non-monetary support in its Oct. 19 campaign finance report. Eighty-eight percent of that, $2,816,897, came from 11 funders.

RMV traced that money through the Secretary of State’s TRACER database last month. One Colorado and the One Colorado Education Fund gave $364,501 to Families Not Politics.

The American Civil Liberties Union, Planned Parenthood and their affiliates contributed nearly $1.6 million to defeat the two measures. Cobalt Advocates and the Cobalt Foundation gave $449,000.

Protect Kids Colorado, the committee behind 133, 134 and 135, reported about $460,000 in contributions through mid-October, according to the Sun. Its largest donors included a 501(c)(4) nonprofit tied to the committee along with conservative Christian leaders and organizations.

Families Not Politics raised about seven times what Protect Kids Colorado did.

Two more committees spent against the measure. The People’s No raised about $365,000, most of it from the ACLU and the Colorado Organization for Latina Opportunity and Reproductive Rights. Vote Common Sense, which fought an array of conservative measures this year, raised about $1.1 million.

Eight committees registered against 135 with the state. Two registered for it, according to the issue committee filings.

Back to the Capitol

Weiser gave the Sun no specifics on what adjustments he has in mind.

“We’re going to have to take a look at these anti-trans measures and what adjustments are necessary and appropriate,” he said.

Lee called that circumventing democracy.

“Weiser doesn’t get to celebrate the will of the voters when it puts him in office and disregard that same will when it produces a result he doesn’t like,” she said by text Thursday.

Opponents are gathering at the Capitol on Saturday.

Bread and Roses Legal Center posted a flyer on Nov. 3, three days before the measure was called, announcing a “trans rage action.” The flyer sets it for noon Saturday at 200 E. Colfax Ave., the Capitol’s address.

“134/135 aren’t us,” the post reads. “We gather in rage. We gather in pain. We gather in a vision for tomorrow.”

One Colorado has its own Denver gathering listed for the same day. Its release gives no time or location for it and points readers to registration links.

Colorado joins 27 other states restricting care for transgender youth, the Sun reported.

Where the count stands

Proposition 135 passed 1,338,255 to 1,233,751 out of 2,572,006 votes cast on the question.

AP has now called 11 of the 14 statewide measures. Amendments 86 and 87 and Proposition 137 are still out.

None of these results are official.