Federal Appeals Court Hears Oral Arguments In ‘There Are Only Two Genders’ Middleborough Middle School Case

Printed from: https://newbostonpost.com/2024/02/08/federal-appeals-court-hears-oral-arguments-in-there-are-only-two-genders-middleborough-middle-school-case/

A public school can’t celebrate transgenderism with flags, posters, and teaching material and then censor the other side, a lawyer for a Middleborough student who wore a T-shirt saying “There are only two genders” told a federal appeals court Thursday.

“The school decided this subject matter was appropriate, let one side of the debate be worn in school, pushed it themselves, and then decided that only the other side wasn’t allowed,” said David Cortman, senior counsel of Alliance Defending Freedom, who is representing Middleborough middle school student Liam Morrison.

But a lawyer for the school district said school officials were right to demand that Morrison remove his only-two-genders T-shirt in March 2023 because the message goes beyond being “merely offensive” and can do “significant harm” to students who identify with a gender other than the one that corresponds to their biological sex.

“I think that this message, that there are only two genders, is vile. And it says to someone who is non-binary that you do not exist, that your validity does not exist, and it attacks the very core characteristic,” said Deborah Ecker, of KP Law, a law firm headquartered in Boston.

The lawyers appeared earlier today for oral arguments before a three-judge panel of the United States Court of Appeals for the First Circuit in Boston.

As New Boston Post reported last year, Morrison, then a 12-year-old seventh-grader at Nichols Middle School in Middleborough, on March 21, 2023 wore a T-shirt to school with the words in capital letters “There are only two genders.” School officials said he had to take it off or go home; he went home.

Three weeks later, he appeared before the Middleborough School Committee to protest what he described as school officials’ violation of his First Amendment right to free speech.

On Friday, May 5, he wore a T-shirt to school with the words “There are censored genders,” which school officials also made him take off. They allowed him to wear a T-shirt saying “My rights don’t end where your feelings begin.”

On May 17, lawyers from Alliance Defending Freedom and the Massachusetts Family Institute filed on his behalf a federal lawsuit in U.S. District Court in Boston claiming the school violated his freedom of speech.

On July 19, Judge Indira Talwani, an Obama appointee, denied Morrison’s motion for a preliminary injunction that would have ordered school officials to allow him to wear the only-two-genders T-shirt. The judge noted that case law establishes that “schools may impose limitations on speech,” including a dress code, and she found that Morrison is unlikely to prevail on his constitutional claim. Morrison’s lawyers appealed the lower court’s decision on August 4.

During oral arguments Thursday, February 8, the lawyer for the Middleborough schools said school officials have a duty to send a message of acceptance for transgender students and to make judgments on what sort of school atmosphere is needed to make them feel welcome.

“Plaintiff has repeatedly argued that he was protesting against the school’s speech, 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 schools that is consistent with the federal law,” Ecker said. “There are times when some of the school’s speech and officials’ decision may come into conflict or tension with the First Amendment. But here, based on this record, 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 plaintiff remove the T-shirt was reasonable. They reasonably could forecast that the message, if he was allowed to wear it in the school and in a classroom, would reasonably cause a disruption to the schoolwork and invade the rights of other students.”

But Morrison’s lawyer argued that while school officials have a right to prevent all discussion of gender identity in school on the grounds that it’s too volatile, they can’t pick one side and then stop people on the other side from expressing themselves.

“Why doesn’t the speech from the school invade the rights of the others, the people who disagree and my clients?” Cortman said.

Judge David Barron, an Obama appointee, probed the schools’ lawyer over where to draw the line.

A transcript of a portion of their back-and-forth is below.


Judge David Barron:  But the difficulty with that is, suppose someone as a, um, “Judaism is the only true religion.”  Is that permissible to wear? Is that vile?


Deborah Ecker:  Maybe, maybe not, right? Depending upon context. But —


Judge David Barron:  What’s the context? The T-shirt just says that.


Deborah Ecker:  Right, but if it said —


Judge David Barron:  “Jesus is the only savior,” is that vile?


Deborah Ecker:  Maybe, maybe not.


Judge David Barron:  Why do you say “maybe, maybe not”?


Deborah Ecker:  Right. In the context, I think the —


Judge David Barron:  What’s the context?


Deborah Ecker:  Well, I think the example used below is more equivalent to this, that there are only two races. Right? So that no matter what, some races don’t exist or are lesser than other races. That to me would be vile.


Judge David Barron:  “Christianity is the only true religion.” Can you not wear that shirt?


Deborah Ecker:  That depends on the context.


Judge David Barron:  Why?


Deborah Ecker:  Well, because it depends if it would offend or invade the rights of those students who were there.


Judge David Barron:  But this is what puts the courts in a funny position where, I don’t know, I mean how do we just make our own judgment? You would think school administrators are the ones to make those judgments. So then we could have a rule, total deference, with respect to all messages. But we can’t have that rule. So that’s why I guess I’m at least struggling. It’s not that this thing isn’t vile or is vile. It’s sort of who’s supposed to decide how vile it is? And when we’re reviewing a judgment that it is, what am I supposed to be using as my metric for assessment?


Deborah Ecker:  One would be the, and you’ve said this, the school officials and what they knew, right, the age, the fact, and what they knew about their school. And then going forward, look at, you know, the studies that are out there that are on the record about how this type of message would affect a middle school student or other students who are a captive audience that are sitting in this classroom and looking at it and perhaps are struggling about their own identity or don’t want to come out or are fearful of that. So I think that’s the metric, at least with this particular message.




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