Officials in MA ban t-shirt stating “There Are only Two Genders”

As issues involving sexuality increasingly encroach on daily activities, including in schools, controversies increase over the messages educators allow students to communicate defending what are now euphemistically referred to as “traditional values.”

In a recent case, L.M. v. Town of Middleborough, Massachusetts, the First Circuit affirmed that educational officials can prohibit a middle schooler from wearing different versions of a t-shirt displaying the message “There Are only Two Genders”.

I will briefly highlight some previous litigation that provides context to this case, and will then consider how L.W. puts free speech at risk.

Previous litigation

The Seventh Circuit affirmed that educators in Illinois could not prevent a student from wearing a t-shirt displaying “Be Happy, Not Gay” while a federal trial in Minnesota held that officials could not ban one proclaiming “Straight Pride.” In the first of two cases from Tennessee, a federal trial court decided that officials could not stop a student from wearing a t-shirt stating “Homosexuality is a sin!” among other messages. The second court upheld a student’s right to display the message “homosexuality is a sin—1 Corinthians 6:9–10.”

Further, a federal trial court in Ohio concluded that officials could not proscribe a student from wearing a t-shirt reading “Some People Are Gay, Get Over It.” Except for the second case from Tennessee, in which the court indicated that officials violated the student’s First Amendment rights to free speech and free exercise of religion, the remaining disputes were resolved solely on the basis that educators violated the students’ free speech rights because they lacked reasonable forecasts that allowing the t-shirts would have led to school disruptions.

Conversely, the Ninth Circuit ultimately allowed officials in California to prevent a student from wearing a t-shirt displaying “Homosexuality is shameful. Romans 1:27” on its front and “Be ashamed. Our school has embraced what God has condemned” on the back. The court ruled the message was inconsistent with the school’s educational mission, which included teaching tolerance and civic responsibility. After the Supreme Court refused to hear an appeal, the Ninth Circuit dismissed the case as moot because the student had graduated.

L.M. v. Town of Middleborough, Massachusetts

In this case, a twelve-year-old seventh-grade student and his parents challenged officials who prevented him from wearing a t-shirt proclaiming “There Are only Two Genders” during the spring of 2023. Educators regarded the t-shirt as violating a school dress code stating “[c]lothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”

After educators ordered L.M. to stop wearing the original t-shirt, he dressed in one with the words “Only Two” covered by tape on which was written “CENSORED.” On being told not to wear the second t-shirt, L.W. and his parents unsuccessfully filed suit in the federal trial court seeking to enjoin the code for violating his First and Fourteenth Amendment rights to free speech and due process, respectively.

On appeal, a unanimous three-judge panel of the First Circuit affirmed that officials reasonably interpreted L.M.’s t-shirts as demeaning toward transgender-gender-nonconforming students and that allowing him to wear them would have been materially disruptive to the school environment. The court also agreed that the dress code’s “hate speech” provision was neither facially vague in violation of L.W.’s Fourteenth Amendment due process rights nor facially over-broad under the First Amendment free speech clause.

L.W. and his parents appealed to the Supreme Court.

Impact on free speech

On appeal, L.M. and his parents are represented by Alliance Defending Freedom, a highly successful law firm that “advances every person’s God-given right to live and speak the truth.” According to ADF Senior Counsel and Vice President of U.S. Litigation, David Cortman, “[s]tudents don’t lose their free speech rights the moment they walk into a school building…This case isn’t about T-shirts; it’s about a public school telling a middle-schooler that he isn’t allowed to express a view that differs from their own.”

Cortman’s comment aptly alludes to the Supreme Court’s groundbreaking 1969 opinion in Tinker v. Des Moines Independent School District establishing students’ right to free speech and expression. At issue was whether students could wear black armbands to school protesting American involvement in Vietnam.

The Tinker Court famously wrote that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” acknowledging that challenges arise “where students in the exercise of First Amendment rights collide with the rules of the school authorities.” Entering a judgment in favor of the students, the Court added that “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”

Because the First Circuit feared—absent clear evidence—that the message on L.W.’s t-shirt “would ‘poison the educational atmosphere and so result in declines in those students’ academic performance and increases in their absences from school,” it allowed officials to forbid him from wearing it. At its heart, L.W. evidences a clash of values, or as alluded to in Tinker, rights and whose will prevail.

On the one hand, all certainly have the right to live as they see fit and be treated respectfully. On the other hand, it is unclear how exercising one’s First Amendment speech rights by displaying the biblical belief that “[w]hen God created human being … he created them male and female” violates the ill-defined school code on what can be regarded as “hate speech.”

In light of L.W., have Americans reached the point that merely observing a passive opinion on a t-shirt with which they disagree can be regarded as “hate speech” while educators seemingly ignored worries for the wearer’s safety? In fact, a teacher told the Assistant Principal that she had concerns for the “‘physical safety’ of L.M.” and others while some peers complained they would not return to class had he been allowed to continue wearing the t-shirt.

Which is more disruptive: apparently unaddressed threats of physical violence placing L.W.’s safety in jeopardy for wearing t-shirts expressing messages with which some disagreed or his right to display a passive message not all accept? Will cases such as L.W. afford those who oppose free speech the proverbial heckler’s veto limiting the expressive rights of those with whom they disagree, especially if they raise threats of violence? Will people of faith remain free to express their beliefs in how they dress or will they, like L.M., be censored?