Appeals court hears dueling arguments in t-shirt lawsuit

Feb 10, 2024

BOSTON — The United States First Circuit Court of Appeals in Boston heard oral arguments on Thursday, Feb. 8 in the appeal of a court case about whether Nichols Middle School Student Liam Morrison could wear a t-shirt with the words “there are only two genders” while on school grounds.

A lawyer for Morrison and a lawyer for the Middleboro School District presented their arguments and answered questions from federal judges at the oral arguments.

The lawsuit stemmed from an incident last year when Morrison wore a shirt with the words “there are only two genders” to Nichols Middle School. He was told to remove the shirt. Morrison refused to remove the shirt and was then picked up from school by his father.

A federal judge, Indira Talwani, initially ruled in favor of the school district. Morrison’s legal team then filed an appeal in August of 2023.

The lawyer representing Morrison, David Cortman, said that Morrison’s wearing of the t-shirt was a “passive” act that was “not in collision with the rights of others.”

“Courts have said t-shirts are the most passive way to speak,” Courtman said. “You're not thrusting a leaflet at them… you can avert your eyes, you may see it the first time [but] you don’t have to look at it.”

Courtman also described the message of the shirt  — “there are only two genders” — as Morrison’s way of “expressing a different point of view” about a topic that the school district had themselves expressed a point of view about.

“The school defendants here annually celebrate pride month and engage in various types of speech… they hold specific views that… there are an unlimited number of genders,” Courtman said. Morrison “does not share those views, and in response to the school’s views he wore a t-shirt stating ‘there are only two genders.’”

“His t-shirt did not target any individual,” Courtman argued. “It merely addressed the same subject matter the school had already raised but [from] a different point of view.”

Deborah Ecker, who represented the Middleboro School District in the oral arguments, said that the t-shirt could cause “significant harm.”

In contrast to Cortman’s description of the t-shirt as “passive” speech, Ecker described the students at the Middle School as a “captive audience.” (Students are generally expected to attend school.) “The information these school officials had about their students, who are in middle school, was that being forced to sit in a classroom with this message… would cause significant harm to these kids,” Ecker said.

Ecker said that the district could “reasonably forecast” disruption as a result of the shirt, and that examples of the disruption could include a “reduction in grades.”

The lawsuit named the town of Middleboro, the Middleboro School District, Middleboro Superintendent Carolyn Lyons, and the former Nichols Middle School Principal Heather Tucker as defendants.

The Alliance Defending Freedom, a national legal group that describes itself as a “Christian law firm,” and the Massachusetts Family Institute, a nonprofit organization that describes itself as a “Christian advocacy organization,” initially filed a lawsuit on behalf of Morrison on May 17, 2023. 

David Cortman, the lawyer who presented oral arguments on behalf of Morrison, is the Senior Counsel and Vice President of U.S. Litigation at Alliance Defending Freedom.

At a press conference after the oral arguments, Morrison said that the case “isn’t just about a shirt: it’s about free speech.”

A representative from the Middleboro School District declined to comment on the lawsuit.

Having both presented their arguments, both parties will now await a decision on the case from the appeals court.