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BOSTON — A federal appeals court on Thursday appeared skeptical that a Massachusetts middle school violated a student's right to free speech by requiring him to stop wearing a T-shirt that said, "There are only two genders."
A lawyer for Liam Morrison, 13, told the three judges of a 1st U.S. Circuit Court of Appeals panel in Boston that officials at the Nichols Middle School in Middleborough violated the Constitution's First Amendment by censoring him when he expressed a view opposing the school's pro-LGBTQ stances.
The lawyer, David Cortman, said Morrison wore the shirt in seventh grade to show he disagreed with the school's support of "views that biology alone does not determine sex," which it expressed via pro-LGBTQ posters and Pride Month celebrations.
"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," Cortman said.
Yet Cortman, a lawyer with the conservative Christian legal group Alliance Defending Freedom, said that's what the school did when it told him to either remove the shirt or leave for the day, which he did.
The same thing happened when a few days later he wore a shirt saying "There are (censored) genders," Cortman said. He said a lower-court judge got it wrong when she declined to block the school's shirt ban last year.
The case is one of a growing number of lawsuits by conservative litigants challenging school policies aimed at protecting LGBTQ students from harassment and respecting their pronouns and gender identities.
The judges in Morrison's case, all appointed by Democratic presidents, questioned why the school's actions were not justified to ensure a safe educational environment for nonbinary students and deter disruptions the shirt would prompt.
U.S. Circuit Judge Lara Montecalvo contrasted the shirt with a brochure handed out by students expressing a particular message, saying unlike those pieces of paper, a student could not throw away the shirt that Morrison was wearing.
"A T-shirt that is worn all day is worn all day," she said. "You have to look at it; you have to read it."
Deborah Ecker, a lawyer for the Middleborough School Committee, said the school officials' actions were motivated by concern for the mental health of LGBTQ students, "who are captive in this classroom looking at it."
"I think that this message, that there are only two genders, is vile and it says to someone who is nonbinary that you do not exist, that your validity does not exist, and it attacks the very core characteristic," she said.
U.S. Circuit Judge David Barron noted that, following news reports about the incident with Morrison's first shirt, the school received threatening messages and was forced to call in a police detail as protests began.
"That's all traced back to the shirt," he said. "Had that not happened, none of it would have happened."
