Another federal court rules against teen’s ‘only 2 genders’ t-shirt

(The Daily Signal) – Liam Morrison, a Massachusetts middle schooler, wanted one thing: to wear a T-shirt declaring simply, “There are only two genders.”

After the Middleboro school’s principal and a school counselor pulled Liam, then 12, out of class last year and ordered him to remove the shirt or go home, Liam took his case against the town and school officials to court.

Liam requested a preliminary injunction blocking Nichols Middle School from enforcing its policy restricting his free expression.

Liam asserted that the school’s actions in May 2023 violated his First Amendment right to freedom of expression, particularly as a form of “viewpoint discrimination.” Although his speech was censored, the speech of those expressing a different perspective on the same issue was not.

But after a disappointing loss in federal trial court and a denial of his request for an injunction, Liam appealed to the U.S. Court of Appeals for the 1st Circuit—only to lose again.

Both courts made the same determination—that Liam’s speech, while not necessarily disruptive, interfered with the “rights of others.”

At the lower court level, the Massachusetts federal district court held that Liam’s school was within its rights to prohibit him from wearing the T-shirt.

The court noted that the school’s dress code was undertaken to “protect [against] the invasion of the rights of other students to a safe and secure educational environment.” Among other things, the dress code prohibits clothing depicting hate speech or imagery targeting groups based on gender, sexual orientation, or gender identity.

The district court went on to write that transgender students have “a right to attend school without being confronted by messages attacking their identities.”

The court reached this conclusion by relying on the Supreme Court’s longstanding precedent on school speech, Tinker v. Des Moines (1969), in which the high court held that First Amendment protections extend to students in public schools.

In that case, the Supreme Court clarified that school authorities who want to censor speech must show that permitting the speech would  interfere significantly with the discipline needed for the school to function, or that the particular speech is in “collision with the rights of others to be secure and be let alone.”

On appeal, the 1st Circuit affirmed the lower court’s holding, relying on the “material disruption” test—established by the 7th Circuit in Nuxoll ex rel. Nuxoll v. Indian Prairie School District (2008)—to inquire as to whether school officials may prohibit passive or silent expression that doesn’t target a specific student.

In Liam’s case, the appeals court determined, they could.

Citing the Nuxoll case, the 1st Circuit wrote that “adolescent students subjected to derogatory comments about such characteristics may find it even harder than usual to concentrate on their studies and perform up to the school’s expectations.”

And, the court continued, “speech demeaning the characteristics of personal identity” that was covered by the school’s rule “could be prohibited under Tinker’s material-disruption limitation if school authorities could reasonably forecast that the speech would have ’psychological effects’ on ‘students with those characteristics’ that would yield such ‘symptoms.’”

The 1st Circuit went on to say that the message on Liam’s T-shirt was demeaning to transgender and gender-nonconforming students and could reasonably be forecasted to “poison the educational atmosphere,” which would substantially disrupt the administration of the middle school. The court held that school administrators should be given deference in deciding what is conducive to the learning environment.

Although schools generally know best what conduct may prove most “disruptive to the learning environment,” the 1st Circuit’s holding that speech resulting in “psychological effects” on other students can be restricted is too deferential.

The decision allows the political or cultural whims of school administrators to dictate what is appropriate one day and perhaps inappropriate the next—so long as those school administrators believe (without providing any evidentiary support) that the speech likely would make other students feel “uncomfortable” with a classmate’s expression.

In Liam’s case, the appellate court acknowledged that both the town of Middleboro and school officials were unaware of any prior incidents or issues caused by the message on Liam’s T-shirt. But in the court’s view, the school had made a sufficiently reasonable forecast of the serious nature of the struggles that some students might experience based on gender identity, which might be severe enough to disrupt their ability to learn.

But the Supreme Court never has held that abstract forecasts, speculative outcomes, and psychological effects are an appropriate basis for censoring a student’s speech.

To the contrary, in an earlier school speech case, then-Justice Stephen Breyer called American schools the “nurseries of democracy.” And the Supreme Court has held (albeit in a trademark case, not one concerning school speech) that even offensive speech, considered “disparaging” to others, is a form of protected expression that survives  First Amendment scrutiny.

These dictates are hard to square with the 1st Circuit’s determination that “demeaning” another’s characteristics is enough to censor even silent forms of expression.

English philosopher John Stuart Mill once wrote: “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

In the T-shirt case, Liam was the “one” in the town of Middleboro. And yet he was silenced for expressing what he believed to be a statement of fact.

In the midst of increasingly divisive cultural orthodoxy on gender identity and expression, particularly in America’s classrooms, it seems there is no room for debate or dialogue if individuals hold politically unpopular or traditional views on the immutable nature of sex and the unyielding reality of biology.

The appellate court’s holding in Liam’s case is unfortunate and indicates that, at least in some states, censorship cuts only one way.   

Liam’s attorneys at Alliance Defending Freedom have indicated they are eyeing an appeal.