Lawyers for a Middleborough middle school student who was barred last year from wearing a shirt to class that said “There are only two genders” have petitioned the US Supreme Court to hear the First Amendment case after an appeals court in Boston sided against him in June, according to court records and the student’s attorneys.
Liam Morrison and his family had filed suit in federal court in Boston in May 2023, two months after he was barred from wearing the shirt in school. Asserting a violation of his free speech rights, they sued the town and school officials, who didn’t immediately respond to requests for comment Thursday.
A judge ruled against Morrison in July 2023, and he appealed to the First Circuit in Boston, which upheld the lower court ruling in July.
During oral arguments before the appeals court in February, David A. Cortman, a lawyer representing Morrison from the Arizona-based Alliance Defending Freedom, said the Middleborough public schools celebrate Pride Month each year and encourage students to do the same. Cortman asserted that 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, his lawyer said. The shirt did not target any specific individual and school officials indicated he was articulate and “respectful” when discussing his views, he 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 the Middleborough school system, said officials were adhering to their mission to foster an inclusive school environment when they told Morrison he couldn’t wear 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 said the seventh-grader was protesting the school’s stance on gender identity, Ecker 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 appellate judges 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 counterprotests and protests, pro and con,” Cortman said, 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.’”
In a May 2023 affidavit, Middleborough Public Schools Superintendent Carolyn J. Lyons said she learned in March of that year about the shirt issue and 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.”
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.”
Material from prior Globe stories was used in this report. This breaking news story will be updated when more information is released.
Travis Andersen can be reached at travis.andersen@globe.com.