Legally, There Are Only Two Genders. Students Should Be Allowed to Say So.

Breaking news: legally speaking, only two genders exist. While you may have seen reports of myriad “non-binary” gender identities like “Two-Spirit,” “Demi-boy,” and “Cake-gender”—to name a few—the Supreme Court has repeatedly recognized that only males and females exist.

Indeed, just last year, in the controversial Dobbs v. Jackson opinion that rejected a constitutional right to abortion, the dissenters repeatedly invoked the consequences that the decision would have for ... women. Not transgender men. Not non-binary-uterused individuals. Women, specifically.

In case after case, the Supreme Court has relied on the immutability of gender as a reason to protect people against sex discrimination under the law. Why should people be punished for something that they cannot change?

Even in the Court’s high-profile 2020 Bostock case, which rejected discrimination against certain transgender individuals in the employment setting, the Court’s holding relied on the underlying premise of two genders: male and female. That’s the law of the land.

So it should be surprising to see a federal court rule that speaking the truth is dangerous if it’s done in a school setting. But that’s precisely what has happened. A Massachusetts judge recently ruled against a public school student who wants to wear a t-shirt reflecting the settled legal reality. The shirt says, “There are only two genders.”

In the case of L.M. v. Town of Middleborough, a federal District Court judge held that a school could ban such a shirt in the interest of making “potentially vulnerable students” feel safe. Regardless of the veracity of the statement on the shirt, the court held that the school was free to prevent the student from engaging in such speech.

To be clear, student free-speech rights are indeed narrower in public schools. Students cannot disrupt the school environment through profanity, obscenity, or by advocating illegal activity, for example. They maintain a constitutional right to protest and speak their minds, however, so long as they stop short of certain limits.

Years ago, the Supreme Court rejected a school’s effort to ban students from wearing black armbands to protest the Vietnam War. And a lower court held that a student had a First Amendment right to wear a shirt saying, “Be Happy, Not Gay.” In these cases, the courts ruled that the schools could not prevent students from speaking their minds.

Given the constitutional right to free speech, how did we get to the point where a federal judge weighs a student’s fundamental right to speak against a vague concern that that student’s expression will imperil other students’ “safety”? And how could a court hold that students may not feel safe when a fellow student displays a message expressing a legal reality in the United States?

If a student arrives on campus in clothing bearing the memorable words of the late Justice Ruth Bader Ginsburg, will he or she be disciplined? In her most famous opinion, United States v. Virginia, Justice Ginsburg wrote: “Physical differences between men and women, however, are enduring: The two sexes are not fungible.” Yet in Middleborough, Massachusetts, students displaying these famous words might face disciplinary action.

Recent polling data suggests that a sizeable majority of the country agrees with the student who wore the shirt. According to Rasmussen Reports, 60% of Americans believe that there are only two genders. The Middleborough school’s effort to shield its “potentially vulnerable students” misleads those students into thinking that the world agrees with them. That is the true danger here—not a shirt.

Schools are places where ideas generally ought to be welcome, and where “safety” is an amorphous concept that can too often be used to suppress speech. In this case, a Massachusetts school has suppressed legally accurate speech and ignored the First Amendment’s constitutional protections. One court has let the school get away with it. Bring on the appeal.