Lawyers for student barred from wearing shirt to school that said ‘there are only two genders’ argue before Boston appeals court

Liam Morrison

Lawyers for a middle school student in Middleborough who was barred from wearing a shirt to class that said “There are only two genders” argued his case before a federal appeals court in Boston on Thursday, contending administrators violated his free speech rights.

Attorneys from the Arizona-based Alliance Defending Freedom, argued on behalf of the student, Liam Morrison, during a hearing before the US First Circuit Court of Appeals in Boston.

David A. Cortman, the alliance’s senior counsel and vice president of US litigation, told the court that the Middleborough schools celebrate Pride Month each year and encourage students to do the same. Cortman also asserted the schools hold “specific views” that biology alone doesn’t determine sex and that there are an “infinite number” of genders.

Morrison decided to wear the shirt to register his opposition to those views. The shirt did not target any specific individual and school officials indicated he was articulate and “respectful” when discussing his views, Cortman said.

“Rather than [making] it a teaching moment, and having a conversation with all the students, they decided to censor him,” Cortman said. “But what the school cannot do, even though they could share their own views, is decide that only students who agree with those views can speak but anyone who disagrees should be silenced. And that’s exactly what they did here.”

Deborah I. Ecker, a lawyer for Middleborough school officials, said they were adhering to their mission to foster an inclusive school environment when they barred Morrison from wearing the shirt.

“Characterizing the statement that there are only two genders as being merely offensive trivializes the significant harm that could occur to nonbinary students who are captive in this classroom, looking at it,” she said. Research indicates such messaging can harm nonbinary “students’ ability to learn in the school,” she added.

Morrison’s lawyers have argued that he was protesting the school’s speech in regards to gender identity, she said.

“But that’s a false equivalency because that is government speech, and the school may, and they should, promote a message of inclusivity, equality, and respect [in] the schools that is consistent with the federal law,” Ecker said. “Looking at what the school officials knew about their schools, the age of the kids, the LGBTQ community in that school, and the real mental health concerns, their decision to have the plaintiff remove the T-shirt was reasonable. They reasonably could forecast that the message … would reasonably cause a disruption to the school work and invade the rights of other students.”

The judges, who took the matter under advisement, at one point referenced the fact that police were called to Morrison’s school in April to deal with dueling protests about the shirt issue. School officials also reported receiving threatening messages.

“The protests were counter-protests and protests, pro and con,” Cortman said Thursday, adding that the emails were similarly varied. “So my point is, it’s not justified [for] the school to say, ‘look, there’s disruption going on on this entire issue, but we’re only going to stop one viewpoint.’”

It wasn’t clear when the appellate court will issue its ruling.

The alliance and the Massachusetts Family Institute, a conservative advocacy group, filed suit in May in US District Court in Boston against the town and school officials for prohibiting Morrison, then a seventh grader, from wearing the shirt.

In a May affidavit, Middleborough Schools Superintendent Carolyn J. Lyons said she learned in March about the shirt issue and that she had later corresponded with Morrison’s father about it by email.

“The dress code does clearly articulate the expectation that the dress code will be governed by health, safety, and appropriateness,” Lyons wrote to Morrison’s father, according to court papers. “That appropriateness comes at the discretion of the building administration. The content of [redacted] shirt targeted students of a protected class; namely in the area of gender identity. While I cannot share the numbers of names of students and staff that complained about this shirt, I can assure you that there were several students and several staff who did.”

In the affidavit, Lyons said that “several” students at Morrison’s school have attempted suicide or reported suicidal ideation in recent years and have “frequently” cited their LGBTQ identity as “a major factor.” In July 2022, she said, a high school student in town died by suicide.

Asked about those reports in court, Cortman said such concerns “should never be diminished.”

“And I don’t want to be dismissive of it, because that’s very serious regardless of who it’s happening to,” he said.

But to restrict speech “there has to be a link between whatever harm you’re alleging and the specific speech in question,” he said. “There can’t be a general, ‘well, we have a general issue with this,’” he said.

He said the school “has the burden to prove the speech isn’t protected” under the First Amendment. “They have the burden to show that speech is going to harm those kids. And those issues, as serious as they are and they are, they’re very complex.”

On Thursday, the group said Morrison wore the shirt “to peacefully share his belief, informed by his scientific understanding of biology—that there are only two sexes, male and female—and that a person’s gender—their status as a boy or girl, woman or man—is inextricably tied to biological sex.”

The school’s principal and a school counselor pulled the student out of class and ordered him to remove his shirt, according to the group.

“After he politely declined, school officials said that he must remove the shirt to return to class. As a result, the student left school and missed the rest of his classes that day,” the group said.

In June, US District Court Judge Indira Talwani in June sided with school officials in a preliminary ruling.

“Plaintiff has not established a likelihood of success on the merits where he 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,” Talwani wrote.

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, 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,” she wrote.

Lawyers for Morrison filed their appeal in August.