Massachusetts school can in fact ban 'two genders' T-shirt, federal appeals court rules

A school district in Massachusetts was within its rights to ban a student’s “There Are Only Two Genders” T-shirt, as protecting LGBTQ+ students from harassment overrides free speech considerations, a federal appeals court has ruled.

“In following the lead of other courts that have grappled with similar cases, we emphasize that in many realms of public life one must bear the risk of being subjected to messages that are demeaning of race, sex, religion, or sexual orientation, even when those messages are highly disparaging of those characteristics,” Chief Judge David J. Barron wrote for a three-judge panel of the U.S. Court of Appeals for the First Circuit. The ruling was issued Sunday and upholds one from a federal district court.

“But, like these other courts, we do not understand Tinker [a 1969 Supreme Court ruling on student speech], in holding that schools must allow for robust discussion and debate over even the most contentious and controversial topics, to have held that our public schools must be a similarly unregulated place,” he continued.

The student, identified in the lawsuit as L.M. and in media reports as Liam Morrison, was a seventh-grader at John T. Nichols Middle School in Middleborough when he wore the shirt to school on March 21, 2023. He was called into a meeting with the school’s interim principal and other administrators, who told him that some students had complained about the shirt and that he must remove it if he wanted to return to class. The shirt violated the dress code’s prohibition on hate speech, the administrators said. Morrison refused and left school for the day. He was not disciplined.

He wore the shirt to school again on May 5, 2023, with the word “Censored” taped over the words “Only Two.” Administrators told him he could not wear that shirt either, and he agreed to take it off and return to class. A few days later, two other students wore shirts with the original message and were also told they were in violation of the dress code. One agreed to remove the shirt and go back to class, while the other refused and went home. Neither of them was disciplined either.

Soon afterward, Morrison and his parents filed suit in U.S. District Court in Massachusetts, alleging violation of his First Amendment rights to free speech. The district court ruled that the school district was within its rights to enforce the dress code to protect vulnerable students. The shirt’s message "may communicate that only two gender identities — male and female —are valid, and any others are invalid or nonexistent,” the court ruled, adding that “students who identify differently ... have a right to attend school without being confronted by messages attacking their identities.” Morrison and his parents appealed to the First Circuit, resulting in the Sunday ruling.

Administrators knew that Nichols Middle School had some students who were transgender or gender-nonconforming, the appellate ruling noted, and that these students often felt unwelcome or bullied at school. They were likely to react badly to Morrison’s shirt, and administrators were right to conclude that the shirt would disrupt the learning environment, Judge Barron explained.

“The question here is not whether the t-shirts should have been barred,” he wrote. “The question is who should decide whether to bar them — educators or federal judges. We cannot say that in this instance the Constitution assigns the sensitive (and potentially consequential) judgment about what would make ‘an environment conducive to learning at NMS to us rather than to the educators closest to the scene.” He added that while “the shirt’s message is not at the farthest end of demeaning,” it goes beyond “‘tepidly negative.’”

Morrison is represented by the Alliance Defending Freedom, which handles many anti-LGBTQ+ and anti-abortion clients. The ADF is “reviewing all legal options including appealing this decision,” Senior Counsel David Cortman said in a statement to Bloomberg Law.It could appeal to the full First Circuit or the U.S. Supreme Court.

“Students don’t lose their free speech rights the moment they walk into a school building,” Cortman added. “The government cannot silence any speaker just because it disapproves of what they say.”