The Supreme Court on Tuesday declined to hear a student’s challenge to his school district blocking him from wearing a t-shirt to class that reads, “There are only two genders.”
Justices Clarence Thomas and Samuel Alito, two of the court’s leading conservatives, indicated they would’ve reviewed the student’s case, saying the lower courts were distorting the First Amendment.
“If a school sees fit to instruct students of a certain age on a social issue like LGBTQ+ rights or gender identity, then the school must tolerate dissenting student speech on those issues,” wrote Alito, joined by Thomas.
Lower courts held that the school’s ban doesn’t conflict with the famous 1969 Supreme Court decision, Tinker v. Des Moines, that permitted students wearing armbands protesting the Vietnam War by ruling they don’t “shed their constitutional rights” when they enter “the schoolhouse gate.”
Christopher and Susan Morrison, the guardians of student L.M., who is not named in court filings because he is a minor, latched onto the precedent as they sued the Middleborough, Mass., school district in 2023 for declining to let the student wear the shirt, and a second one that read, “there are censored genders.”
“It gives schools a blank check to suppress unpopular political or religious views, allows censorship based on ‘negative psychological impact’ or ideological offense, rejects a public school’s duty to inculcate tolerance, and lowers free-speech protection for expression that schools say implicates ‘characteristics of personal identity’ in an ‘assertedly demeaning’ way,” the lawsuit states.
“This flouts Tinker and turns the First Amendment on its head.”
The student is represented by Alliance Defending Freedom, a Christian conservative legal powerhouse that frequently wins cases implicating gender and sexuality to the Supreme Court.
The school district’s attorneys said the group “attempts to rewrite the facts” and doesn’t grapple with affidavits submitted by school administrators at Nichols Middle School (NMS) that provide “crucial context” justifying how the shirts interfere with other students’ ability to concentrate.
“School administrators attested to the young age of NMS students, the severe mental health struggles of transgender and gender-nonconforming students (including suicidal ideation), and the then-interim principal’s experience working with gender-nonconforming students who had been bullied in other districts and had harmed themselves or were hospitalized due to contemplated, or attempted, suicide,” the district wrote in court filings.
Though the court turned away the petition, the justices have already agreed to hear a major case this term implicating transgender protections.
The high court is weighing whether Tennessee’s ban on gender-affirming care for minors amounts to unconstitutional sex discrimination, a ruling that stands to impact similar laws passed in roughly half the country by Republican-led state legislatures. A decision is expected by early summer.
