In the halls of Nichols Middle School in Middleborough, Massachusetts, a student decided to voice his opinion. This young man—who is using his initials, LM, because he is a minor—believes that subjective feelings don’t determine the facts of objective reality. Specifically, LM disagrees that someone’s personal and internal identity can change the reality of that person’s sex.
To express this viewpoint, LM attempted to wear a t-shirt to school bearing the message, “there are only two genders.” He didn’t wave it like a banner in others’ faces, nor did he go out of his way to target any specific individual or group to show off the shirt. He just wore it to school, and went to his classes.
For school officials, such expressive attire was a brazen act of bigotry, an “attack” on the “very existence” of students whose feelings do not match their bodies. They barred him from ever wearing the shirt to school again.
So, to send a message to the public school that LM would not be silenced, he wore a different shirt that read: “there are CENSORED genders.” Once more, the school acted to suppress his speech.
LM is absolutely right. His public school engaged in censorship and violated LM’s right to free speech as protected by the First Amendment to the Constitution of the United States. Mountain States has joined LM’s fight.
Case Background
In the landmark case of Tinker v. Des Moines, the Supreme Court held that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” A school may only limit a student’s speech if it would cause “substantial disruption” (imagine a protest march in the school hallways during the middle of the day or a speech provoking a fight between rival student factions) or if it would seriously invade on the “rights of others.”
School officials did not suppress LM’s expression because they believed it would cause disruption. Instead, they focused solely on the second idea: that it invaded the “rights of other students.” But, contrary to the school’s view, the “rights of others,” properly understood, does not include the right to be shielded from speech on topics of public concern—like gender identity—even if the ideas being expressed might upset a handful of people. Simply put, the Supreme Court’s stance that schools can restrict speech to protect the rights of other students is not a blank check for suppression of merely disagreeable and dissenting speech.
Some may argue that LM’s statement about there being only two genders is tantamount to verbal bullying. But that is wrong. Merely pointing out what is true for all mammals—that there are two sexes, male and female—is not bullying or an “attack” on a vulnerable minority. While it is possible that a highly sensitive audience member may feel unnerved when reminded of this reality, LM’s free speech rights do not hinge on the reactions of the most sensitive. Especially when official rulings of the Supreme Court, statutes passed by legislatures, and the rules set by numerous agencies, all already reflect that there are, in fact, only two genders, no reasonable person could believe LM’s statement amounted to bullying.
Join the Fight
Since 1977, MSLF has fought to protect private property rights, individual liberties, and economic freedom. MSLF is a nonprofit public interest legal foundation. We represent clients pro bono and receive no government funding. Make your 100% tax deductible contribution today and join the fight.
What’s at Stake
Fashionable ideologies around sex and gender are increasingly entering public schools. Though every American is entitled to their opinion and should be free to agree or disagree, one side of the debate is being suppressed by the government. Namely, the side that raises questions about whether internal feelings can change one’s status as either male or female.
LM’s school is suppressing his opinion under the pretense that his t-shirt message—expressing mere disagreement to the prevailing metaphysical orthodoxy in Massachusetts—is akin to bullying. However, the Town of Middleborough cannot suppress his speech on an important public topic based solely on the possibility that some other students might be offended or feel “attacked.” To the contrary, the school owes a duty not only to explain to students that individuals like LM have a right to free speech, but also to help students who may be unnerved to develop a sense of resilience and self-esteem by encouraging them to attempt to refute LM’s ideas publicly if they disagree.
Mountain States is offering an amicus brief in support of LM, because government suppression of student speech in the debates on gender is the next frontier in the fight to protect free speech. The courts must firmly declare to school authorities they are not at liberty to suppress ideas they find disagreeable, especially in matters of public controversy. Schools have a duty and civic trust to inculcate a culture of free speech and to train the next generation of Americans to respond to disagreeable speech with reasoned argument, not tactics meant to shut down debate.
We make the argument in our brief that the appellate court should issue a strong opinion which makes crystal clear that schools may not manufacture excuses to suppress ideas which they find disagreeable, simply based on the false characterization that such speech would be an “attack on vulnerable minorities.”
It is time to once again recognize the strength of Tinker, and reaffirm the fundamental liberties in the First Amendment.
November 2024 Update:
On June 9, 2024, the First Circuit Court of Appeals affirmed the dismissal of L.M.’s lawsuit. The court held that public school officials have the right to determine whether or not a student’s statements amount to an attack on other students and their identities. If so, according to the First Circuit, school officials can ban those statements as inherently disruptive.
This ruling was profoundly in error. L.M. expressed a scientific and legal truism: that there are only two genders. To deem that speech an “attack” on others akin to bullying is not reasonable. Students have free speech rights that must include, at the very least, the right to repeat basic facts of mammalian biology, which also happen to underpin numerous long-established principles of law – even if those facts might make some confused individuals feel uncomfortable. Mountain States is supporting L.M. as he takes his case to the next level, by seeking Supreme Court review. In our amicus curiae brief, we are asking the Supreme Court to clarify that a school must act reasonably when deciding whether student speech is akin to bullying and that schools may not use the bullying rationale to suppress one side of a political and social debate, while allowing the other side to have its say.
Case Timeline
- March 2023: L.M. was prevented from wearing t-shirt to school expressing his message that “there are only two genders.”
- May 2023: L.M. wore “there are [CENSORED] genders” t-shirt to school. He was censored again.
- L.M. brought a lawsuit in the US District Court for the District of Massachusetts to vindicate his First Amendment rights.
- June 2023: The District Court denied L.M.’s motion for a preliminary injunction seeking an order allowing him to express his message at school—L.M. filed an appeal to the US Court of Appeals for the First Circuit.
- July 2023: Parties stipulated to entry of final judgment at the District Court level—L.M. later filed an appeal, and the two appeal cases were consolidated into one
- October 2023: MSLF filed amicus brief in support of L.M.’s appeal.
- June 2024: The First Circuit Court of Appeals affirmed the dismissal of L.M.’s lawsuit.
- November 2024: MSLF filed amicus curiae brief in support of L.M., seeking Supreme Court review.
