Student’s ‘Two Genders’ T-Shirt Lawsuit Lacks Merit, Judge Says

A twelve-year-old’s claim that his public school violated his First and Fourteenth Amendment rights by sending him home for wearing a t-shirt reading “THERE ARE ONLY TWO GENDERS” isn’t likely to succeed, the US District Court for the District of Massachusetts said.

The Middleborough Public Schools student argues that the Constitution protects his right to express his views on sex and gender—views which could be considered “discrimination, harassing and/or bullying to others including those who are gender nonconforming by suggesting that their sexual orientation, gender identity or expression does not exist or is invalid,” the school system said in a letter.

The lawsuit is part of a greater wave of anti-LGBTQ+ lawsuits and legislation targeting the queer community. The student is represented by Alliance Defending Freedom, the conservative Christian legal advocacy group that clinched a 2018 Supreme Court victory protecting a Christian baker’s right to refuse to bake a wedding cake for an LGBTQ+ couple.

The student “has not established a likelihood of success on the merits” because the school demonstrated that “enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment,” Judge Indira Talwani wrote in an order.

Supreme Court Precedent

The student came to school wearing the shirt in question in March 2023. His principal told him he had to take it off because of complaints from students and staff. The student refused, so the principal told him he couldn’t return to class.

The student claims his school censored him, violating his First Amendment rights and discriminating against him because of his viewpoint. He asked the court to block the school from preventing him from wearing the t-shirt while litigation unfolds.

“One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect,” the order said. If the school had allowed the student to keep wearing the shirt, “perhaps he would have listened to and heard other students’ explanation as to why they viewed this message as hostile.”

But whether the student is likely to win his lawsuit “does not depend on whether the Defendants could have handled the issue differently but whether the Constitution limits them from taking the action they took,” the judge said.

A school may regulate speech if it invades others’ rights, the US Supreme Court established in Tinker v. Des Moines Independent Community School District in 1969.

Students who identify as nonbinary, “whether they do so openly or not, have a right to attend school without being confronted by messages attacking their identities,” the order said.

The case is L.M. v. Town of Middleborough, D. Mass., No. 1:23-cv-11111-IT, Memorandum & Order 6/16/23.