The Supreme Court declined on Tuesday to take up a case arguing the constitutionality of a Massachusetts school’s ban on a student’s t-shirt that read, “There are only two genders.”
Because the court declined to hear the case, the school’s ban stays in place.
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Lawyers for Liam Morrison say the school’s policy against clothing featuring discriminatory language violates his First Amendment rights.
The high court’s two most conservative members, Justices Samuel Alito and Clarence Thomas, dissented on the decision not to hear the appeal.
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The case was brought by the student who wore the “only two genders” shirt, Liam Morrison. In 2023, Morrison sued John T. Nichols Middle School (NMS) in Middleborough, Massachusetts after he was barred from class for wearing the shirt.
Morrison was represented by the crusading Alliance Defending Freedom (ADF), a Christian law firm that regularly pursues cases challenging the rights of LGBTQ+ people in court. ADF is designated as a hate group by the Southern Poverty Law Center.
“There are only two genders” is an expression often used by anti-LGBTQ+ ideologues to imply trans identities aren’t valid. School administrators said the shirt was offensive and hateful, and in violation of school rules targeting groups or individuals.
In 2023, Morrison, then in seventh grade, was called into a meeting with administrators who told him there had been complaints about the shirt’s message and that it violated the school’s prohibition on hate speech.
After he was told he’d have to remove the shirt before returning to class, Morrison refused and left school for the day. There was no subsequent disciplinary action.
Two months later, Morrison showed up on campus in the same shirt but with the word “censored” tape over a portion of the message. Morrison was again told he would have to remove his shirt or be barred from class. He again chose to leave school for the day.
Morrison wore other t-shirts on other days with political messages, as well, including “Don’t tread on me” and “First Amendment Rights,” none of which he was not required to remove.
ADF attorneys argued Morrison was offering an alternative viewpoint to the Middleborough school district’s celebration of Pride Month, with its displays of Pride flags and promotion of “an unlimited number of genders.”
The decision by the Supreme Court not to hear the case affirms lower district and circuit court rulings that said the school’s ban did not violate the student’s First Amendment right to free speech.
Writing for a three-judge panel of the U.S. Court of Appeals for the First Circuit in June last year, Chief Judge David J. Barron found the school district was within its rights to regulate Morrison’s speech.
“In following the lead of other courts that have grappled with similar cases, we emphasize that in many realms of public life one must bear the risk of being subjected to messages that are demeaning of race, sex, religion, or sexual orientation, even when those messages are highly disparaging of those characteristics,” Barron wrote for the court.
But while Supreme Court precedent holds that schools must permit debate over “even the most contentious and controversial topics,” it doesn’t follow “that our public schools must be a similar unregulated place,” he said.
The court relied on a number of precedents, including Tinker v. Des Moines Independent Community School District, which determined students wearing black arm bands to protest the Vietnam War did not interfere with the conduct of school business.
Morrison’s case was different, the court found.
The shirt’s message “may communicate that only two gender identities — male and female —are valid, and any others are invalid or nonexistent,” Barron wrote. “Students who identify differently, have a right to attend school without being confronted by messages attacking their identities.”
“The question here is not whether the t-shirts should have been barred,” he continued. “The question is who should decide whether to bar them — educators or federal judges. 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.”
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