U.S. Court of Appeals Affirms Denial of Student’s Preliminary Injunction in “There Are Only Two Genders” T-Shirt Case

In June, 2023, the federal District Court for Massachusetts declined to issue a preliminary injunction that had been requested by a student in L.M. v. Town of Middleborough, No. 1:23-cv-11111-IT. The student sought to enjoin the school defendants from enforcing the school dress code to prohibit the student wearing a T-shirt with the message “THERE ARE ONLY TWO GENDERS” while at school. The student claimed that this violated the student’s speech rights under the First and Fourteenth Amendments to the United States Constitution. The trial court ruled that an injunction should not be issued because the student’s claim had no likelihood of success on its merits. See our advisory dated June 27, 2023 for an account of the underlying facts. The trial court then entered final judgment. The student appealed to the United States Court of Appeals for the First Circuit and that court affirmed the decision on June 9, 2024 in L.M. v. Town of Middleborough, Nos. 23-1535, 23-1645.

The court’s analysis is detailed and comprehensive. The significant points are as follows. While the court affirmed the trial court’s judgment, it did so on more nuanced grounds. Essentially, the court balanced the speech rights of students in schools by recognizing that schools also have a duty to protect students while they are in school and to teach students of differing races, creeds and colors to engage each other in civil terms rather than in terms of debate that are highly offensive or highly threatening to others.

The appellate court ruled that school authorities may lawfully regulate passive and silently expressed messages that demean other students’ personal characteristics (race, sex, or sexual orientation) in order to prevent a material disruption of the classroom, a collision with the rights of other students to be secure and to be left alone, or both. The court relied on precedent to illustrate that the right to be left alone is a recognizable privacy interest that the administration has the right to protect from material interference. The court also relied on precedent holding that a school may even in some instances regulate passive messages expressed by students that have no specific target. The appellate court emphasized that regulation is permissible if the expression can reasonably be interpreted to demean one of the characteristics of a student’s personal identity, given the common understanding that such characteristics are “unalterable or otherwise deeply rooted” and that demeaning them “strike[s] a person at the core of his being”. The court ruled that the student’s T-shirt fell within this category because it demeaned the personal identity of transgender and gender-nonconforming students and it would be materially disruptive to the learning environment due to its negative psychological impact on those students. The court therefore held that school officials could lawfully bar wearing the shirt in school.

Last, the court closed its opinion by stating “[t]he question here is not whether the t-shirts should have been barred … [but] … who should decide whether to bar them — educators or federal judges.” The appellate court concluded that “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 [the school] to us rather than to the educators closest to the scene.”

Issues regarding student speech rights in schools, including wearing expressive apparel, are inherently fact sensitive, and decisions to permit or ban certain apparel will often require legal guidance.

If you have any questions about the content of this update, please contact us. We are pleased to assist school districts with all issues related to the rights of students, including speech/expression, as well as the speech rights of employees.

This update is provided for informational purposes only and should not be considered legal advice.