Appeals Court Ponders Limits in ‘Two Genders’ T-Shirt Case

Federal appellate judges hearing a case involving a 12-year-old boy who was sent home from a Massachusetts school for wearing a T-shirt saying “THERE ARE ONLY TWO GENDERS” seemed keenly interested Thursday as to how far slogans should be able to go before administrators act.

While an attorney for the student, identified in court filings and the proceedings as L.M., told a US Court of Appeals for the First Circuit panel that the administrators censored lawful free speech, the judges asked if more extreme statements would be permissible under their view of case law.

“Suppose the T-shirt said all trans kids are ‘retarded,’” Senior US Circuit Judge O. Rogeriee Thompson said. “Does that cross the line? Or is that just viewpoint? If your client said, ‘I truly believe that,’ can that not be banned?”

The student’s lawyer, David A. Cortman of Alliance Defending Freedom, said that would be considered “fighting words” and could be banned.

‘Attacks the Core Characteristic’

The exchange was one of several in a lively set of oral arguments in a case that attracted significant attention.

The then-seventh grader sued the district in Middleborough, about 40 miles south of Boston, in May after his middle school principal ordered him to take off the T-shirt for violating the school’s dress code the previous March. He also wore a similarly phrased shirt in May, after groups had protested outside the school the previous month, but elected that time to change his shirt when administrators again stepped in.

He claims the school infringed upon his First Amendment right to express his views on gender identity. State law only permits schools to censor student speech if it could reasonably cause a material disruption or constitute bullying, neither of which the state can prove, the student argued.

“This should have been a moment, as Tinker has said, that we teach the students how to debate on controversial topics of the day,” Cortman told the court on Thursday, referencing the 1969 US Supreme Court decision in Tinker v. Des Moines Independent Community School District. “And yet that did not happen.”

The school district claims that censoring the student was necessary to protect LGBTQ+ students from discrimination and comply with state and federal law.

“I think that this message, that there are only two genders, is vile and it says to someone who is nonbinary that you do not exist, that your validity does not exist, and it attacks the very core characteristic,” said Deborah I. Ecker of KP Law PC, who represents the district.

Regulating Speech

US District Judge Indira Talwani last June sided with the school district, finding it permissible to regulate speech when it invades other students’ rights as the US Supreme Court established in Tinker.

The case elicited input from officials from GOP-leaning states, as well as free speech, LGBTQ+, and parental rights groups.

Judges, mainly Chief US Circuit Judge David J. Barron, went back and forth with the attorneys on both sides for 50 minutes, but saved the toughest questions for Cortman.

Cortman, the student’s attorney, said that “outside protests on both sides of the issue shouldn’t be allowed to be brought into the school, and if it is, then both sides of the debate should be shut down and monitored, not just one side.”

Ecker, school district’s attorney, saw it differently.

“There are times when some of the school’s speech and officials’ decision may come into conflict or tension with the First Amendment,” she said. “But here, based on this record, looking at what the school officials knew about their schools, the age of the kids, the LGBTQ community in that school, and the real mental health concerns, their decision to have plaintiff remove the T-shirt was reasonable.”

The case is L.M. v. Town of Middleborough, 1st Cir., No. 23-1535, oral argument 2/8/24.