.png)
In March 2023, a Massachusetts middle school required a student wearing a shirt reading, “THERE ARE ONLY TWO GENDERS” to either remove the shirt, or leave school. He and his family sued, claiming that the school violated his rights under the First Amendment and the Massachusetts Declaration of Rights. In L.M. v. Town of Middleborough, a Massachusetts federal judge denied his request for a preliminary injunction, holding that he was unlikely to prevail in the lawsuit. In my opinion, the court was wrong, and its decision is likely to be ultimately overturned on appeal.
The school in question was a public school, meaning that the student had a First Amendment right to free speech, even while in school. As the United States Supreme Court established in Tinker v. Des Moines Independent School District, the “special characteristics of the school environment” may affect what forms of expression are permissible—but neither teachers and students in public schools “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In Tinker, students were wearing black armbands to protest the Vietnam war. The Supreme Court held that this conduct, “entirely divorced from actual or disruptive conduct by those participating in it,” was “closely akin to ‘pure speech’” and thus “entitled to comprehensive protection under the First Amendment.”
To be clear, the Supreme Court has not been equally protective of speech rights for students under all circumstances. In Morse v. Frederick, the Supreme Court upheld censorship of a student who unfurled and then refused to take down a banner at a school event that read, “BONG HITS 4 JESUS.” The Court held there that “a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” In so holding, it referenced another case, Bethel School District v. Fraser, in which it had permitted a school to discipline a student for giving a speech at a school assembly that included “an elaborate, graphic, and explicit sexual metaphor.”
Student speech can, then, be restricted in some circumstances, but following Tinker, the possibility that speech might offend others in a community should be insufficient to justify censorship, where it doesn’t cause actual disruption. The First Circuit held in 2020, for example, in Norris ex rel. A.M. v. Cape Elizabeth School District, that a school could not discipline a young woman under its anti-bullying policy for a putting a sticky note reading, “THERE’S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS,” in the bathroom, even though the evidence was clear that she was aiming the statement at a particular student who was not, in actuality, a rapist, because she was exercising her right to free speech to raise concerns about the school’s handling of sexual violence.
In L.M., the judge held: “School administrators were well within their discretion to conclude that the statement “THERE ARE ONLY TWO GENDERS” may communicate that only two gender identities-male and female-are valid, and any others are invalid or nonexistent, and to conclude that students who identify differently, whether they do so or not, have a right to attend school without being confronted by messages attacking their identities.” In other words, censorship was permissible because the speech was so likely to be upsetting to other students. I think that decision is out of step with the First Circuit’s decision in Norris and with Supreme Court precedents, particularly including Tinker. (And, speaking practically, I think if the current Supreme Court is asked to pit anti-discrimination laws or norms against free speech, anti-discrimination will always lose.)
I am personally sympathetic to the fears that school administrators felt for LGBTQ students in their care. But I can’t agree that the shirt, expressing a student’s viewpoint about gender generally, constituted either harassment or bullying of those students as a class. The school had every right to disagree with the viewpoint expressed by the “two genders” shirt, and to express its disagreement—as it had already done at length (the decision discusses the school’s efforts to “promote[] messages commonly associated with LGBTQ Pride” and to train to teachers and staff on how to support LGBTQ students). But its choice to censor L.M.’s message was a choice to prevent a student from being heard in his community on a question that is highly politicized and about which there is significant national debate. It’s also worth noting that political actors who oppose rights for the LGBTQ community are also engaging in extraordinary censorship and are also cloaking that activity in rhetoric about protecting children. Normalizing and legalizing censorship of viewpoints deemed offensive is not a productive path toward securing rights for LGBTQ students, LGBTQ communities, or any marginalized group.
