If enough judges hostile to constitutional rights get appointed, constitutional rights get nullified. That’s happened in the Boston region, where the progressive First Circuit Court of Appeals has repeatedly ruled against students and citizens whose free speech rights have been violated by government officials. The First Circuit is dominated by Democrats, and the Democratic judges on it have let Democratic officials get away with violating the First Amendment in case after case, such as letting the government discriminate against religious speakers.
Now, Education Week reports that “In an important ruling on student expression, a federal appeals court has upheld the authority of Massachusetts school administrators who barred a middle school student from wearing a T-shirt that said, ‘There Are Only Two Genders.'”
This message was no more controversial or offensive than what courts have ruled is protected by the First Amendment in the past, such as a black armband signifying opposition to U.S. soldiers fighting in Vietnam — which the Supreme Court ruled was protected in Tinker v. Des Moines School District (1969) — or a “Be Happy, Not Gay” T-shirt that a federal appeals court in Chicago ruled was protected in 2008. Moreover, the T-shirt was not aimed at any other student, such as a transgender student. And no student had even complained about it.
But those were rulings by bipartisan courts. The First Circuit is lopsidedly dominated by Democrats who are hostile to free speech. All three judges on the panel of the court that ruled against the student were Democrats, appointed by Presidents Obama and Biden.
As Education Week reports:
A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled unanimously that “precisely because the message was reasonably understood to be so demeaning of some other students’ gender identities, there was the potential for the back-and-forth of negative comments and slogans between factions of students” that could lead to “a deterioration in the school’s ability to educate its students.”
Liam Morrison was a 7th grader at Nichols Middle School in Middleborough, Mass., in April 2023 when he wore the shirt, which he and his father viewed as a comment on the hot political topic of gender identity and not a message aimed at any group or individual at his school, according to court papers.
School administrators … invoked a provision of the student dress code that barred “hate speech or imagery that target[s] groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”…
About a month later, in May 2023, Morrison again wore the shirt to school, this time with the words “Only Two” covered with a piece of tape with the word “Censored” written with a marker. Administrators decided that Morrison could not wear the altered shirt because it was so closely identified with his original message. The student removed the shirt. He later wore shirts with messages such as “Don’t Tread on Me” and “First Amendment Rights,” which he was not required to remove.
Appeals courts addressing such student expression “appear to have converged on the shared understanding … that school officials may bar passive and silently expressed messages by students at school that target no specific student if: (1) the expression is reasonably interpreted to demean one of those characteristics of personal identity, … and (2) the demeaning message is reasonably forecasted to poison the educational atmosphere due to its serious negative psychological impact on students,” Judge David J. Barron wrote for the 1st Circuit panel….School administrators were not unreasonable in concluding that Morrison’s shirt “would be understood—in this middle school setting in which the children range from 10-to-14 years old—to demean the identity of transgender and gender-nonconforming NMS students,” Barron said.
Judge Barron’s claims are bunk. There is no evidence in the record to suggest that the T-shirt had, or could, “poison the educational atmosphere” or that it had any “negative psychological impact on students,” or that it could potentially have the “serious negative psychological impact” Judge Barron speculated it might. Such speculation is simply the judge’s excuse for allowing the suppression of speech that is at odds with the judge’s own woke ideology.
Indeed, the T-shirt is fairly bland, far less offensive than T-shirts and buttons that other federal appeals court have ruled is protected by the First Amendment.
The T-shirt is certainly not hate speech (and there is no “hate speech” exception to the First Amendment, as the Supreme Court has made clear.)
It’s a far milder statement about transgender identity than statements by psychiatric experts that “transsexualism and milder forms of gender dysphoria are mental disorders.” (to quote the 2019 statement of Ray Blanchard, the “chairman of the working group on paraphilia” for the fifth edition of the “Diagnostic and Statistical Manual of Mental Disorders” (DSM-5), the diagnostic tool published by the American Psychiatric Association).
It doesn’t even involve “misgendering” a particular student — something that is mild enough that a federal appeals court ruled that it could be protected by the First Amendment, in Meriwether v. Hartop (2021).
As a lawyer pointed out,
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).
Law professor Eugene Volokh criticized the ban on the T-shirt, saying:
I don’t think this is consistent with students’ First Amendment rights under Tinker v. Des Moines Indep. School Dist. (1969)…but in any event it struck me as important to pass along. 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 broaden, once a precedent is set, for instance from the Confederate flag to “there are only two genders.”
The T-shirt echoes the basic biological fact that there are two sexes. (Gender is a related concept, and while some may claim there are many genders, doctors in the U.S. only perform two types of gender reassignment surgery — one consistent with a male identity, and the other consistent with a female identity. Thus, a typical transgender person is one of two genders, and saying there are only two genders is not an “attack on their identity”.)
The “two genders” T-shirt is less offensive than the Che Guevara T-shirts some progressive students wear, which are disproportionately offensive to Cuban-American students. Che Guevara, who tortured and killed many Cubans (including children), helped install the brutal Castro regime in Cuba, which resulted in Cuba being poorer, more backward and eventually less healthy. Guevara, who called himself “Stalin II,” after the Communist Soviet dictator whose regime killed at least 20 million people. As Human Progress reported,
Che Guevara also helped establish the first Cuban concentration camp in Guanahacabibes in 1960. This camp was the first of many. From the Nazis, the Cuban government also adapted the motto at Auschwitz, “Work sets you free,” changing it to “Work will make you men.” According to Álvaro Vargas Llosa, homosexuals, Jehovah’s Witnesses, Afro-Cuban priests, and others who were believed to have committed a crime against revolutionary morals, were forced to work in these camps to correct their “anti-social behavior.” Many of them died; others were tortured or raped.
Yet colleges have murals of Che Guevara, which they refused to remove. No one cares that these murals offend Cuban-American students. Nor do schools ban students from wearing T-shirts that say “all whites are racist,” although such T-shirts could be said to “demean” the identity of white students.
The Alliance Defending Freedom represented the student in L.M. v. Town of Middleborough. It is considering all legal options, including whether to ask the Supreme Court to hear an appeal of the First Circuit’s ruling. People can ask the Supreme Court to hear their case by filing a petition for certiorari, but the Supreme Court court only grants 1% of all such petitions, so it does not review most badly-reasoned lower court decisions.
The Supreme Court occasionally reviews (and reverses) decisions by the First Circuit — such as overturning the First Circuit’s 2021 ruling that Boston could exclude a Christian flag while permitting other flags. The Supreme Court ruled that violated the First Amendment, in Shurtleff v. City of Boston (2022). But more often, the Supreme Court just ignores the First Circuit’s bad rulings. One lawyer jokes that “There is no First Amendment in the First Circuit.”
“Students don’t lose their free speech rights the moment they walk into a school building,” said Alliance Defending Freedom. “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.”
Bob Corn-Revere, the chief counsel of the Foundation for Individual Rights and Expression, which filed an amicus brief in support of the student, said the First Circuit “got the decision wrong.” He said Morrison’s shirt involved “the passive expression of an idea that some people may dislike or find uncomfortable,” but the appellate ruling restricts student speech rights by improperly “expanding what it means to be targeted or bullied.”
After this incorrect court ruling, left-wing activists will argue that that all schools and workplaces in the First Circuit have a legal duty to ban such T-shirts, and statements by students or employees that there are only “two genders.” They will cite the Title IX statute, which bans behavior that creates a hostile environment based on gender, and argue that the court’s ruling has already recognized that such T-shirts could create a hostile “educational atmosphere.” They will also argue that employers have a duty to ban statements that there are only two genders, under Title VII of the Civil Rights Act, which bans behavior that creates a hostile work environment based on gender.
After this ruling, employers who are afraid of being sued for a “hostile work environment” will now start punishing employees who say things like “there are two genders.” That will take a big bite out of free speech. Employers should not have to waste their valuable time micromanaging employees’ speech just to avoid a “hostile-environment” harassment lawsuit. For a discussion of how employers already have been pressured by lawsuits and civil-rights agencies to restrict a wide array of speech, visit this web page. For why this pressure on employers to restrict speech goes too far and thus violates the First Amendment, visit this web page.
