Student banned from wearing ‘There Are Only Two Genders’ shirt to school loses appeal

A federal appeals court has ruled against a Massachusetts eighth-grader whose school forbade him from wearing a T-shirt with the message “There Are Only Two Genders” — a decision he is likely to further appeal.

A panel of the First U.S. Circuit Court of Appeals deferred to the Middleborough Public Schools in its 3-0 ruling, saying that “we see no reason to substitute our judgment for Middleborough’s with respect to its application of its Dress Code here,” specifically its prohibition on “hate speech” clothing.

“Insofar as the Shirt does demean the gender identities of students who are transgender or gender nonconforming, we agree with Middleborough it is no less likely to ’strike a person at the core of his being’ than it would if it demeaned the religion, race, sex, or sexual orientation of other students,” Chief Judge David J. Barron, an Obama appointee, said in the 70-page opinion released Sunday.

The Alliance Defending Freedom said it will likely appeal the ruling on behalf of student Liam Morrison, arguing that the First Circuit “erred in its decision denying L.M. his right to free speech.”

“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,” ADF senior counsel David Cortman said. “The school actively promotes its view about gender through posters and ’Pride’ events, and it encourages students to wear clothing with messages on the same topic — so long as that clothing expresses the school’s preferred views on the subject.”

He said that “the government cannot silence any speaker just because it disapproves of what they say.”

Liam, an eighth-grade student at John T. Nichols Jr. Middle School in Middleborough, Massachusetts, was sent home last year after refusing to remove his “There Are Only Two Genders” T-shirt. He later wore the same shirt with the words “two genders” blocked out with tape and replaced by “censored.”

He was told to remove the taped shirt, which he did, rather than miss another day of school.

Even though his T-shirt was banned, Liam said his school encourages students to “wear our Pride gear to celebrate Pride Month.”

“The administration believes that a person’s status as a male or female, or something else, depends only on what they feel, and not at all on biology,” Liam said in an ADF video. “You can hardly go a day without hearing those views through conversations, hallway displays, and extracurricular school events. Like my teachers and principal, I have beliefs, too, and I’m not shy about sharing them.”

Judge Barron said schools are permitted to restrict student speech that “materially and substantially” interferes with school discipline or represents an “invasion of the rights of others,” citing the 1969 Supreme Court decision in Tinker v. Des Moines, which ruled in favor of students wearing black armbands to protest the Vietnam War.

“The question here is not whether the t-shirts should have been barred,” Judge Barron said. “The question is who should decide whether to bar them — educators or federal judges.”

He said that based on previous court rulings, including Tinker, “we cannot say that in this instance the Constitution assigns the sensitive (and potentially consequential) judgment about what would make ’an environment conducive to learning’ at NMS to us rather than to the educators closest to the scene.”

The U.S. District Court for the District of Massachusetts denied Liam’s motion for a temporary injunction in June 2023. Liam, who is also represented by the Massachusetts Family Institute, filed the appeal in September.

Liam’s next steps include asking for an en banc hearing before the First Circuit or filing for Supreme Court review.