Dozens of states, groups ask Supreme Court to hear ‘There are only two genders’ T-shirt case

WASHINGTON – Multiple education experts, free speech advocates, and 18 states have filed friend-of-the-court briefs with the U.S. Supreme Court that ask it to take the case of a student forbidden by his Massachusetts school from wearing two different T-shirts to school with the words “There are only two genders” and “There are [censored] genders” on the front.

In June, the U.S. Court of Appeals for the 1st Circuit affirmed the school’s decision, prompting Alliance Defending Freedom attorneys, who represent the student, to ask the high court to review the case and rule that Nichols Middle School in Middleborough violated the First Amendment when it stopped the student from wearing his shirts to school.

“Students don’t lose their free speech rights the moment they walk into a school building,” said ADF Senior Counsel and Vice President of U.S. Litigation David Cortman. “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. 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. Our legal system is built on the truth that the government cannot silence any speaker just because it disapproves of what they say. We appreciate the many states and organizations that have joined us in urging the Supreme Court to take this critical free speech case.”

“By silencing L.M., the First Circuit created a speech-hostile standard that—contrary to [Tinker v. Des Moines Independent Community School District]—allows schools to restrain even silent, passive displays of speech that cause no actual disruption,” the multi-state brief led by the states of South Carolina and West Virginia explains. “It split from other circuits on issues like what facts a school must show to justify a restriction on student speech. And it effectively sanctioned viewpoint discrimination in public schools.”

“If the First Circuit’s broad expansion of Tinker’s ‘invasion of the rights of others’ exception is allowed to stand, school administrators nationwide will wield it to censor unpopular or dissenting viewpoints—miseducating students about their expressive rights in our pluralist society,” adds the brief filed by Foundation for Individual Rights and Expression.

Attorneys with ADF and Massachusetts Family Institute representing the student filed the lawsuit, L.M. v. Town of Middleborough, in May 2023.

The ADF Center for Academic Freedom is dedicated to protecting First Amendment and related freedoms for students and faculty so that everyone can freely participate in the marketplace of ideas without fear of government censorship.

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