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?
If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!
Click here for more information on donating to CWR. Click here to sign up for our newsletter.
I’m all for teaching children there are only 2 genders but this seems to confirm the commonsense of school uniforms.
That’s what public schools do where where we live.
Two sexes, three genders
Yes, that’s correct in language but the older conversational use of gender was also about biological sex.
Just as the groceries should not be owned and operated by the government, so K-12 schools should not be owned and operated by the government.
There! Problem solved.
And forget vouchers too, since that is another form of government control.
But the government does have one role:
To make sure that the free economy provides a job for the hard-working, law-abiding husband-father of every family to earn enough to pay for all family necessities, including K-12 education, health insurance, food, housing, and so on.
People can’t create their own jobs any more than they can create land to farm. A totally free economy won’t ever offer a living wage job to every husband-father. So, the free economy must be free but not totally free, as Pope Leo XIII said.
“Whenever the general interest or any particular class suffers, or is threatened with harm, which can in no other way be met or prevented, THE PUBLIC AUTHORITY MUST STEP IN to deal with it.” (Pope Leo XIII’s Rerum Novarum, § 36)
People create there own jobs all the time. That is how business start-ups occur.
The government does not owe any one a job, cannot will into existence companies that can provide high level wages as not every job out there is “worth” the so-called living wage needed to support a wife, 5 children, house and picket fence.
Pres. Trump is trying to get rid of the Dept of Education and many are up in arms protesting! I’m not! I say, “Hurray!”
From what I’ve seen of the public schools (with a few exceptions), they have become politicized and are not doing their job to educate children and teens–abysmal standardized test scores and an emphasis on the “social issues” rather than the basics, including “reading, writing, and “rithemetic.”
In spite of having weekends, holidays, and summers off, public school teachers strike almost every year, demanding salaries comparable to engineers, lawyers, and doctors, along with a long list of benefits. Although the average salary for a public school teacher in the U.S. is $71,699 (more than I ever made after earning a 4-year degree and working in a hospital lab for over 30 years), plus they can earn even more if they decide to teach summer school, teachers continue to demand higher salaries and more benefits, claiming that they deserve it because they are “training our future citizens.” Really? The standardized test scores don’t attest to that.
Of course, the public schools blame the “testing process” rather than taking responsibility for their failure to adequately educate. Or they blame the family, which can definitely contribute to poor test scores and inability to learn, but…don’t public schools exist to help students from poor, uneducated, or dysfunctional families rise up and have the opportunity to prepare themselves for a better life and income and escape from their sad lot in life?
Public schools also become a haven for bullies–not just the big bully who beats little kids up and steals their lunch (although there are plenty of these in schools), but the “political bullies” who demand open-mindedness from everyone else, but close their own minds when it comes to anything that challenges their beliefs.
.
But…public schools offer gifted athletes opportunities to earn a college scholarship and the remote possibility of being recruited by a professional sports team and earn millions of dollars!
In reality, these scholarships are only earned by a few elite and very talented young athletes, and the majority of these athletes do not end up in a career in professional sports and earning a fabulous income.
Privatize schools and challenge the churches, organizations (e.g., Planned Parenthood!), and individual philanthropists to open their own private schools and raise the funds that allow students from all income levels choose to attend. Let individuals, corporations and businesses, and others who are interested in promoting an educated populace contribute (and earn tax deductions!) to the private school(s) of their choice instead of being taxed (heavily!!!–public educations is the major part of my local taxes!) for public education that continues to produce questionable outcomes.
After three attempts at public schools, we gave up and sent our daughters to a Country Day School–it cost a lot of money, but boy, did they get a great education that led to good careers that provide more than a living wage. And they also had plenty of opportunities for “socialization”–involvement in sports, the arts, and many other clubs and student-managed charitable organizations. There were many different religions and political alignments among the parents, students, and teachers in that school–but the rule was “RESPECT!”–and this was one of the most valuable lessons that our daughters learned from their private school.
In all my years, I’ve only ever seen two sexes. (I’m done with gender, grammar excepted).
I immediately went to Mrs. Cracker’s solution, uniforms.
This only confirms that State-run public education is less about educating children than it is about brainwashing children to conform to a certain political agenda.
The government needs to get out of the education business. Instead, give ALL parents the amount now that it costs for one child’s education in any locale. The parents can then go into the marketplace to purchase the education for their children that they desire.
Let’s face it, there are few services that government entities provide where they excel. When there is no accountability, quality suffers. Plain and simple.
The student was clearly in the wrong. English has three genders: masculine, feminine, and neuter. Some other languages have more or fewer. Do they not teach grammar in these schools?
With respect, the student’s t-shirt was referring to human sexuality, not English (or any other) language.
I doubt that “grammar” is taught in most public schools now, except in higher-level elective English classes (if they are offered) in suburb schools. I also doubt most teachers have the guts (or an alternative employment option) to face down the administration and challenge rules that mandate that students are allowed to choose not to use “traditional” English grammar when expressing themselves in speaking or writing.
What a world, what a world!
Although you correctly point out the third “gender” in the English language, it hardly supports the position of the opposition to the t-shirt in question.
Grammar.
noting or pertaining to a gender that refers to things classed as neither masculine nor feminine.
(of a verb) intransitive.
Zoology, Botany. having no organs of reproduction; without sex; asexual.
Zoology. having imperfectly developed sexual organs, as the worker bees and ants.
neutral; siding with no one.
Thanks for joining in.
Hopefully th4 Supreme Court will intervene and set the record straight.
Stay resolute. As Bette Davis said in one of her films, “Hang on, it is going to be a bumpy ride.”
PS the shirt was referring to biology, not grammar : )
People are arguing over clothing. It doesn’t matter what side of this argument you’re on, you’re retarded either way.