Supreme Court Takes a Pass on ‘Two Genders’ T-Shirt Case

WASHINGTON — A divided Supreme Court on Tuesday declined to revive a First Amendment lawsuit filed on behalf of a Massachusetts middle school student whose school district blocked him from wearing a T-shirt to class that reads, “There are only two genders.”

As is their custom, the majority in the decision did not explain their rationale; however, two conservative justices said they would have preferred to review the case from the 1st U.S. Circuit Court of Appeals.

Justice Samuel Alito Jr. wrote that he would have granted the petition for review for two reasons.

“First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech,” he wrote, pointing to the 1968 case Tinker v. Des Moines Independent Community School District.

In that case, which revolved around a group of high school students’ desire to wear black armbands to school to protest the Vietnam War, the court held that students do not lose their First Amendment Rights to freedom of speech when they step onto school property.

Further, Justice Abe Fortas, who delivered the opinion of the 7-2 majority, said that in order to justify the suppression of speech, school officials must be able to prove that the conduct in question would “materially and substantially” interfere with the operation of the school.

Alito said he believed the 1st Circuit failed to follow Tinker in deciding the case and instead cherry-picked “which First Amendment principles it thought worthy of allowing through the schoolhouse gates.”

The justice went on to say he would have also granted review of the case to determine whether the 1st Circuit “properly understood the rule adopted in Tinker regarding the suppression of student speech on the grounds that it presents a risk of material disruption.”

“The lower courts are divided on how to apply Tinker’s ‘material disruption’ standard in a context like this one, and [this case] underscores the pressing need for clarification,” Alito wrote.

Justice Clarence Thomas joined Alito’s dissent, but also wrote briefly on his on own, saying the student in this case “plainly did not create a ‘materia[l] disrupt[ion],’” by wearing the barred t-shirt or a second one he donned that said, ‘There are CENSORED Genders.’”

“In holding otherwise, the 1st Circuit distorted this court’s First Amendment case law in significant ways that warrant this court’s review,” Thomas said.

The underlying events of the case began to unfold in March 2023 when Liam Morrison, a seventh grader at Nichols Middle School in Massachusetts, wore a shirt that stated “There Are Only Two Genders.” 

The t-shirt was his way of protesting what he saw as the school’s progressive stance on gender equality.

According to the lawsuit later filed by his family, Morrison was pulled from class by the school’s acting principal and sent home after he refused to change clothes. 

Two months later, Morrison wore another shirt to school that said “There Are Censored Genders” and was again sent to the principal’s office.

Morrison’s family sued the school district, but lost the case in federal district court. It appealed to the 1st Circuit, which upheld the lower court ruling, but did so on the grounds that the school had a right to censor speech that can be reasonably interpreted to demean another person.

The boy and his parents petitioned the Supreme Court for review.