Ten years ago, maybe even five, no one would have blinked at the bold assertion that there are only two genders. Some now argue to the contrary, and perhaps have made a legitimate argument that there are more than two and that the assertion that there are but two genders either “erases” their existence or, to put it more aggressively, is an act of violence against them. Massachusetts district court Judge Indira Talwani agreed.
The First Amendment has long been understood to protect messages on kids’ T-shirts in school, as long as they weren’t vulgar or likely to cause a disruption. For example, a federal appeals court ruled that a kid had the right to wear a T-shirt saying, “Be Happy, Not Gay.” But that was back in 2008, a less woke time, when judges were not as eager to sacrifice free speech rights at the altar of political correctness.
Today, in L.M. v. Town of Middleborough, a federal judge in Massachusetts has ruled that a school can ban a student from wearing a T-shirt that says “there are only two genders.” Supposedly, this is because if the T-shirt is allowed, there is the risk that a “group of potentially vulnerable students will not feel safe.”
The court held that students have a right to a “safe and secure environment,” and that this message, that the only genders are male and female, violates their right to “feel secure.”
Plaintiff … is unable to counter Defendants’ showing that enforcement of the Dress Code was undertaken to protect the invasion of the rights of other students to a safe and secure educational environment. School administrators were well within their discretion to conclude that the statement “THERE ARE ONLY TWO GENDERS” may communicate that only two gender identities—male and female—are valid, and any others are invalid or nonexistent,3 and to conclude that students who identify differently, whether they do so openly or not, have a right to attend school without being confronted by messages attacking their identities. As Tinker explained, schools can prohibit speech that is in “collision with the rights of others to be secure and be let alone.”
Plaintiff challenged the school’s prohibiting this message by arguing that it didn’t target any individual student, but rather a vulnerable group of students, drawing an analogy to the confederate flag.
Hans Bader argues that Judge Talwani’s decision is ideologically driven and contrary to law.
This decision is wrong. The T-shirt saying “there are only two genders” is milder and more non-threatening than the “Be Happy, Not Gay” T-shirt found to be protected by the First Amendment in Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008). It also less insulting than wearing a button calling your non-union teacher a “scab,” which a federal appeals court ruled was protected in Chandler v. McMinnville School District (1992). One could try to label the T-shirt as “harassment,” but that would be untenable — it obviously comes nowhere near creating a hostile environment, and a viewpoint-based “harassment” code for T-shirts was struck down as a violation of the First Amendment in Pyle v. South Hadley School Committee, 861 F.Supp. 157, 170-74 (D. Mass. 1994). As Judge Rovner observed in her concurring opinion in Nuxoll v. Indian Prairie School District, a “Be Happy, Not Gay” T-shirt “won’t by itself…create a hostile environment.”
Notably, Judge Rovner’s concurrence that “Be Happy, Not Gay,” was written in 2008, long before this issue became so controversial as to cause states to prohibit gay pride flags and any discussion of alternate genders in the classroom. This raises the question in the alternative as well. If “there are only two genders” is too radical for students to feel safe, is it similarly fair for students to claim to feel unsafe in classrooms displaying gay pride flags or discussions about the legitimacy of there being other genders besides male and female?
If one is wrong and disruptive, why is the other acceptable? And that same argument applies to states seeking to prohibit discussion about there being more than two genders, which would not ban discussion or displays that there are only two. Either both are wrong or neither is wrong.
Eugene Volokh similarly doubts this holding is consistent with Tinker, and that it’s a giant step down the slippery First Amendment slope.
I don’t think this is consistent with students’ First Amendment rights under Tinker v. Des Moines Indep. School Dist. (1969) … It’s a vivid illustration of how discussion about gender matters is being restricted, including discussion of mainstream positions, and indeed of positions that need to be aired if there’s going to be real debate rather than just government fiat. And it’s a reminder of how easily “hate speech” arguments and similar arguments so easily broaden, once a precedent is set, for instance from the Confederate flag to “there are only two genders.”
While it may well be argued that a t-shirt bearing the message “there are only two genders” reflects poor judgment and a fairly aggressive challenge to a view that has grown among school students, faculty and administrators that its an attack on their identities, it’s not vulgar and, like it or not, it reflects a view held by many, perhaps even more than the view that everyone is entitled to their own gender identity. While the wearing of it may well be seen as a deliberate challenge to those who believe differently, that’s the core nature of free speech, to send a message even if that message may not be popular with everyone.
But does it collide “”with the rights of others to be secure and be let alone”? This leads into the argument of what is sufficiently threatening to make a student feel “unsafe” such that it impairs the right to feel secure in the school environment. Is it enough that a school administrator fears it could give rise to unwanted controversy? Is it enough that some student claims to “feel unsafe,” whether in a real sense or in the sense commonly used to silence others?
The judge suggested that the T-shirt interfered with other students’ “right to attend school without being confronted by messages attacking their identities.”
If there is to be, as often claimed, an “evolution” in the understanding of gender, can it be accomplished by silencing any disagreement under the incantation that it makes someone “feel unsafe” because any discussion constitutes an attack on their identities? If it’s acceptable that schools teach students that there are more than two identities, can it be unacceptable for a student to disagree?