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School district hit with lawsuit for stopping student from wearing 'only two genders' shirt

Massachusetts district promotes transgender pride flag but bans competing expression under policy that vests 'unbridled discretion' with officials, 12-year-old says. "Censored Genders" shirt banned too.

Published: May 21, 2023 11:31pm

Lawyers for a 12-year-old Massachusetts student sent home for wearing a shirt that read "There Are Only Two Genders" has filed suit against the school district and its dress code.

Middleborough Public Schools acting Principal Heather Tucker forced the child, Liam Morrison, to go home March 21 after he "politely declined" to remove his "There Are Only Two Genders" shirt, and district lawyers said May 4 the same would happen if he did so again, the complaint says.

The next day, Morrison wore a shirt that read, "There Are Censored Genders," prompting his teacher to send him to Tucker's office. He took off the shirt on the way to the office and promised Tucker he wouldn't put it on again "because he did not want to miss another day of school," according to the suit.

The suit was filed Wednesday by Alliance Defending Freedom, citing the First and Fourteenth amendments as grounds for its argument.

The conservative Christian legal advocacy group representing Morrison is asking a federal court to block the district from enforcing its dress code "facially and as-applied" to Morrison's shirts about gender and declare unconstitutional the code's prohibition on messages deemed "hate speech," "unacceptable to community standards" or that "target" specific groups.

It's seeking "actual and nominal damages" from the district and co-defendant Town of Middleborough for violating Morrison's constitutional rights and chilling his speech. He faces "escalating discipline" for wearing the shirts, "up to and including suspension."

Town Manager James McGrail told Just the News it was "aware that a federal lawsuit has been filed pertaining to a dispute over the Nichols Middle School dress code policy" and that officials are consulting with counsel but "have no comment at this time."

School dress codes have become a flashpoint in recent culture wars over gender identity and especially former President Trump. 

Districts and personnel coast to coast have banned Trump masks, jerseys, Make America Great Again Hats and even a virtual Trump banner. Michigan students recently sued their school district for prohibiting "Let's Go Brandon" shirts as "profane" expressions under the dress code, and Trump flags worn as a cape for no stated reason on a "field day" with relaxed dress rules.

"Medical doctors and psychiatrists, school boards and teachers, politicians and citizens, parents and children are all engaged in the debate about what makes a person a man, a woman, a boy, a girl, or even whether those categories themselves have any meaning at all," Morrison's suit begins.

But the district has adopted one view and repeatedly expressed it, including through "annual, school-wide events" and by encouraging students to express only that same viewpoint. 

The suit includes images of materials adorning school walls from GLSEN, formerly the Gay, Lesbian & Straight Education Network, and the transgender and Black Lives Matter version of the rainbow pride flag with an accompanying sign that reads in part "Proud friend/ally of LGBTQ+."

The tween's speech is disfavored because of his "scientific understanding of basic biology that there are only two sexes, male and female," and that gender is "inextricably tied to sex," the suit claims. The school lets other students convey "a multitude of messages concerning virtually unlimited topics on their shirts."

The district dress code prohibits clothing with messages that "state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification."

Tucker pulled Morrison out of his first class of the day when he wore the "Only Two Genders" shirt, saying "other students had complained," according to the suit. The school counselor sat in on their subsequent discussion, and Tucker called Morrison's father, Christopher, to pick him up when he refused.

The school offered no evidence of disruption or students becoming "visibility upset … distracted" or objecting to the message, the suit also claims.

"My son is now asking me why he is not allowed to express his own political statement when he sees others doing the same every day in their choice of clothes, pins, posters, and speech," Christopher Morrison wrote in an April 1 email to Superintendent Carolyn Lyons.

Lyons has declined to share "the numbers" of "students and staff" who complained about the shirt except to say "several" of did so.

However, she said the shirt "targeted students of a protected class; namely in the area of gender identity."

The boy testified at a School Committee meeting April 13. "Who is this protected class?" he asked. "Are their feelings more important than my rights? I don’t complain when I see 'pride flags' and 'diversity posters' hung throughout the school."

The family's lawyer notified the district April 27 that the boy would wear the shirt again May 5 and asked that Lyons "confirm in writing" he would not be stopped. 

District counsel responded May 4 that it will continue prohibiting shirts "likely to be considered discriminatory, harassing and/or bullying" to gender-nonconfirming students "by suggesting that their sexual orientation, gender identity or expression does not exist or is invalid." State law prohibits communications "that may reasonably be considered intimidating, hostile, offensive or unwelcome" based on gender identity," the letter claimed.

The boy wore the shirts in part to "stand against the pressure that he perceived from the school community … not to express" his messages – first about human biology, second about school censorship, the suit reads. Correcting the censorship is "vital to his ability to spread his message."

The dress code policy and practice "impose an unconstitutional prior restraint because they vest school officials with unbridled discretion to permit or deny student expression subject to no standards or guidelines, thereby permitting content- and viewpoint-based enforcement of the policies," according to the complaint. 

They restrict speech that cannot "materially and substantially disrupt the educational process," with no "legitimate pedagogical concerns," the suit continues. "Students of common intelligence must guess" whether messages they wear may run afoul of the "arbitrary determination" of school officials, and get them in trouble.

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