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First Circuit Hears Oral Argument in “There are Only Two Genders” T-Shirt Case

pictogram-884043_1280Two weeks ago the First Circuit heard oral argument in a case that touches on some of the most hot-button issues in education law: student speech rights and discrimination against LGBTQ students. In L.M. v. Town of Middleborough, the Court must decide whether the Middleborough public schools could tell a student he was not allowed to wear a t-shirt that says: “There are only two genders.”  

The case started in March 2023, when seventh grader L.M. wore a shirt to school that said “there are only two genders.” L.M. made this political statement against a backdrop – according to the school—of repeated concerns at the school about bullying of LGBTQ students and several students at the school contemplating or attempting to die by suicide, including students who attributed those actions to anti-LGBTQ experiences at the school. After receiving complaints from students and staff, the principal told L.M. he had to take the shirt off if he wanted to go back to class. L.M. declined, and his parents picked him up and took him home for the rest of the day. L.M. was not disciplined for wearing the shirt and wore other shirts with various political messages with no incident. In May 2023 L.M. wore the shirt to school again—this time with a piece of tape that read “censored” covering the words “only two.” L.M. was sent to the principal during his first class and removed the shirt rather than be excluded from school for the rest of the day.  

The District Court Case 

L.M., represented by the Christian legal advocacy group Alliance Defending Freedom, sued the town under the First Amendment and sought a preliminary injunction requiring the school to allow him to wear the shirt. He represented the situation as one where the school actively promoted one side of a debate over LGBTQ rights by holding a Pride Spirit Week and encouraging students to protect trans and gender non-conforming students from harm, but then silenced his political views that were contrary. The district court denied the preliminary injunction. To obtain a preliminary injunction (often described as an “extraordinary” remedy), one of the things the plaintiff must show is that he is likely to win on the merits of his case. On this question, the parties appeared to agree that under the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District student speech can be curtailed in two circumstances: (1) where it causes a material and substantial disruption at school; or (2) where that speech invades the rights of other students. The district court judge found that the District justified its decision based on a belief that L.M. wearing the shirt would interfere with the rights of trans or nonbinary students who, in the district court’s words, “have a right to attend school without being confronted by messages attacking their identities.” The district court held that the taped shirt conveyed the same underlying message as it had without the tape, so the school was within its rights to prohibit L.M. from wearing the taped shirt as well. The court did not address whether the school district or L.M. would prevail if the case was considered under the “substantial disruption” test. The judge denied the preliminary injunction, and at the parties’ request, converted this decision on the preliminary injunction into a final judgment. 

The Appeal 

L.M. appealed the decisions to the First Circuit Court of Appeals. In addition to briefing by the parties, numerous advocacy groups weighed in through amicus curiae briefs to the court. A number of advocacy groups including the Institute for Faith and Family, Independent Women’s Law Center, the Foundation for Individual Rights and Expression (FIRE) and a coalition of 16 states supported L.M.’s free speech argument, while the NAACP weighed in supporting the lower court’s decision and the ACLU of Massachusetts and GLBTQ Legal Defenders & Advocates provided factual and legal context they felt the court should consider and both groups asked the court to remand the case to the district court for further proceedings. 

Before the First Circuit L.M. argued that passive statements of political views cannot intrude on other students’ rights, and that Supreme Court precedent demonstrates that schools are not allowed to restrict speech just to avoid students experiencing psychological discomfort from that speech. According to L.M. intrusions on other students’ rights occur when a student is not allowed to be “let alone,” or is harassed, assaulted, or threatened. He emphasized a distinction between conduct, which could be discriminatory or harassing and therefore prohibited under state and federal anti-discrimination law, and pure speech, which can only be limited under the two circumstances identified in Tinker. L.M. also argued that the school could not have reasonably forecast that his wearing of the shirt would create a “substantial disruption” to the school environment that would have allowed them to restrict his speech. L.M. noted that the First Circuit has never discussed what a “substantial disruption” in school looks like, but cited to cases from other circuits that have held that wearing messages on clothing is not the kind of behavior likely to cause a substantial disruption.  

The school district painted a slightly different picture of the facts of the case. The District noted that after L.M. was sent home for refusing to take off his shirt, he posed in the shirt and shared pictures to social media, the situation became the focus of local and national news, and protests on both sides of the issue were held outside of the school. In response to the situation, the District reported receiving threats and a barrage of hateful messages, requiring them to obtain police protection at the school. The District argued that in light of these developments, they had serious concerns about the disruption it would cause if L.M. or other students wore the shirt again. The District argued that L.M.’s wearing of the shirt targeted a group of other students and constituted harassing behavior. The District did not agree with L.M.’s characterization of the message on his shirt as “political” or “ideological”; but instead viewed it as an attack on certain students’ innate characteristics and identities. The District pointed to various cases from other courts where schools had been held to properly prohibit students from wearing clothing that attacked elements of students’ identities such as race, religion, and sexual orientation. On the substantial disruption front, the District argued that those decisions are fact-specific, and knowing the makeup of their student body and the issues faced by LGBTQ students in the past, they had reasonably forecast the shirt would create a substantial disruption. 

The Oral Argument 

The appeal was heard by Judges Barron, Thompson, and Montecalvo. At oral argument, Judge Barron was particularly focused on the facts of the case, and how that instructed whether this particular T-shirt could be banned at this particular school. While L.M.’s lawyer argued that the court could only look at the direct impact the shirt had in deciding whether rights had been violated or a substantial disruption reasonably forecast, Judge Barron seemed focused on how all of the events that followed L.M.’s wearing of the shirt (the protests, increased police presence, and threats to school personnel) impacted the school environment. L.M.’s lawyer tried to argue that a school could not ban the T-shirt unless it also banned messages supportive of transgender students; an argument that Judge Barron seemed to find particularly unpersuasive. 

When it was the District’s turn to argue, Judge Barron, who asked most of the questions from the bench, focused on how a court is supposed to decide how long an injunction like this could stay in place. The District’s answer—that the court has to assess the facts and circumstances of each case – didn’t provide much guidance as to whether the court should pick an expiration date for this injunction and then see if the issue arises again. The bench also pressed both sides on where the line is drawn between speech that can and can’t be restricted by coming up with other examples of messages a student could conceivably wear. While L.M.’s attorney suggested his example from Judge Thompson (“all trans kids are [r-word]”) would be unprotected fighting words, the District’s lawyer wouldn’t draw a bright line on any of the examples given to her (“Judaism is the only true religion”; “Jesus is the only savior”; and “Male is not a gender”) and said the context of each school had to be considered in deciding whether the school could restrict those particular statements. 

The case and oral argument highlighted some real tensions in the law where students’ free speech rights come up against other students’ right to feel secure and protected at school. While the ACLU of Massachusetts raised in its brief the point that the Massachusetts constitution, which is broader in many respects than the federal constitution, doesn’t allow speech to be restricted on the basis of the invasion of rights of others and thus the district court’s basis for denying the injunction was flawed, that was not an argument advanced by L.M. himself. The appellate panel’s focus on the factual circumstances of the case suggest they are likely to find for the school in an opinion that relies heavily on the facts of this particular case and the evidence the school had put forward about existing concerns about how LGBTQ students felt at the school, as well as the disruption to the school environment that followed L.M. wearing the shirt the first time. Whether the court identifies a more generally-applicable rule to apply to these cases in the future remains to be seen. 

If you or your child has experienced a civil rights violation at school, contact our education and school discipline attorneys at (617) 742-6020. 

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