Supreme Court declines case about T-shirt declaring ‘only two genders’

The Supreme Court on Tuesday declined to take the case of a Massachusetts middle school student who said his free speech rights were violated when school administrators forbade him to wear a T-shirt that read, “There Are Only Two Genders.”

As is typical in such decisions, the justices in the majority did not explain their reasoning. Justice Samuel A. Alito Jr. wrote a lengthy dissent, joined by his fellow conservative Clarence Thomas, saying the case was a terrible precedent for students’ First Amendment rights.

Transgender issues have become a flash point on campuses across the country, as schools, parents and lawmakers debate which bathrooms transgender students should use, which sports teams they should play on and whether or how gender dysphoria should be explained in the classroom.

In one of the most significant cases of this term, the high court is weighing whether states can ban certain transition medical treatments for young people. The court is also considering whether parents can opt their children out of lessons with LGBTQ+-themed books for religious reasons.

Last week, the justices overturned, for now, the censure of a Maine legislator who mounted a controversial protest of a state law allowing transgender athletes to play girls’ sports in schools.

The T-shirt case stems from a lawsuit filed by the family of a seventh grader at Nichols Middle School in Middleborough, Massachusetts, after the principal removed him from class in March 2023.

The principal told the student that other students had complained about the T-shirt and that it had “made them upset.” The student declined to remove the shirt, so the principal sent him home for the day.

The father of the student emailed the school district superintendent to say the T-shirt was not directed at any particular student and his son was expressing his views on a topic that was being widely discussed across the country.

The father pointed out that the school has promoted pro-transgender messages and posted a photo on its social media of a student wearing a T-shirt that read, “HE SHE THEY IT’S ALL OKAY.”

Shortly after, the student wore a new T-shirt in protest of the restrictions on the first. It read, “There Are CENSORED Genders.” The school also forbade the student to wear that T-shirt in class.

A federal judge in Massachusetts sided with the school, ruling that students have free speech rights on public school campuses but that the Supreme Court has held that administrators could restrict student speech if it disrupts class or invades “the right of others.”

The court found “school administrators were well within their discretion to conclude that” transgender students “have a right to attend school without being confronted by messages attacking their identities.”

The family appealed, arguing the T-shirt did not target any particular student, school administrators lacked evidence the T-shirt would disrupt school, and the school was violating the students’ free speech rights. The U.S. Court of Appeals for the 1st Circuit upheld the lower-court ruling.

Because the Supreme Court declined to hear the case, the court of appeals ruling in favor of the school will be the final word on the lawsuit.

In dissenting from Tuesday’s action by the high court, Alito wrote that so long as the lower court’s decision is on the books, “thousands of students will attend school without the full panoply of First Amendment rights.”

“This case makes clear, some lower courts are confused on how to manage the tension between students’ rights and schools’ obligations,” Alito wrote. “Our Nation’s students, teachers, and administrators deserve clarity on this critically important question.”

Also Tuesday, the Supreme Court accepted one case for its docket for next term, involving the scope of judges’ discretion in granting “compassionate release” to inmates.

The justices are entering the final weeks of this term with several major cases yet to be decided, including an emergency appeal over the scope of nationwide injunctions and a case that will decide whether a Texas law requiring age verification to access pornography sites is constitutional.

The term should conclude by the end of June or the beginning of July.