Home » News » Middle school can prohibit student from wearing ‘only two genders’ T-shirt, 1st Circuit holds

By David L. Hudson Jr., Free Speech Center, published on June 27, 2024

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A public middle school student in Massachusetts did not have a First Amendment right to wear a T-shirt that read, “There are only two genders,” a federal appeals court has ruled. 


The middle school student – identified in court papers as L.M. – wore the T-shirt at John T. Nichols Middle School in Middleborough and was told to remove it to remain in school. He later was prohibited from wearing the same T-shirt with the words “Only two” and a piece of tape with the word “Censored” that covered the remaining words. 


School officials relied on a provision of the dress code that read: “Clothing must not state, imply, or depict hate speech or imagery that target[s] groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”  


L.M., through his father, filed a lawsuit in the federal district, alleging a violation of his First Amendment rights. A federal district court dismissed the claim, finding that the T-shirts invaded the rights of LGBTQ+ students. 


On appeal, a three-judge panel of the 1st U.S. Circuit Court of Appeals affirmed – albeit on different grounds – in L.M. v. Town of Middleborough.  


The appeals court reasoned that the proper standard to apply from the seminal student-speech decision Tinker v. Des Moines Independent Community School District (1969) is the so-called substantial disruption standard – whether public school officials can reasonably forecast that the student speech in question will cause a substantial disruption or material interference with school activities. 


The 1st Circuit said school officials did reasonably forecast a substantial disruption in the form of negative psychological impact that the T-shirt would have on the LGBTQ+ students. The appeals court wrote that the T-shirt “demean[s] the gender identities of students who are transgender or gender nonconforming.” 


The appeals court further explained: “We conclude the record supports as reasonable an assessment that the message in this school context would so negatively affect the psychology of young students with the demeaned gender identities that it would ‘poison the educational atmosphere’ and so result in declines in those students’ academic performance and increases in their absences from school …” 


“Students don’t lose their free-speech rights the moment they walk into a school building,” said Alliance Defending Freedom Senior Counsel and Vice President of U.S. Litigation David Cortman in a news release. “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.”


David L. Hudson Jr. teaches First Amendment law and constitutional law classes at Belmont University College of Law. He is the author, co-author, or co-editor of more than 50 books, including The Constitution Explained: A Guide for Every American (Visible Ink Press, 2022) and The First Amendment: Freedom of Speech (Thomson Reuters, 2012). 

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