The First Amendment has long been understood to protect messages on kids’ T-shirts in school, as long as they weren’t vulgar or likely to cause a disruption. For example, a federal appeals court ruled that a kid had the right to wear a T-shirt saying, “Be Happy, Not Gay.” But that was back in 2008, a less woke time, when judges were not as eager to sacrifice free speech rights at the altar of political correctness.

Today, in L.M. v. Town of Middleborough, a federal judge in Massachusetts has ruled that a school can ban a student from wearing a T-shirt that says “there are only two genders.” Supposedly, this is because if the T-shirt is allowed, there is the risk that a “group of potentially vulnerable students will not feel safe.”

This decision is wrong. The T-shirt saying “there are only two genders” is milder and more non-threatening than the “Be Happy, Not Gay” T-shirt found to be protected by the First Amendment in Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008). It also less insulting than wearing a button calling your non-union teacher a “scab,” which a federal appeals court ruled was protected in Chandler v. McMinnville School District (1992). One could try to label the T-shirt as “harassment,” but that would be untenable — it obviously comes nowhere near creating a hostile environment, and a viewpoint-based “harassment” code for T-shirts was struck down as a violation of the First Amendment in Pyle v. South Hadley School Committee, 861 F.Supp. 157, 170-74 (D. Mass. 1994). As Judge Rovner observed in her concurring opinion in Nuxoll v. Indian Prairie School District, a “Be Happy, Not Gay” T-shirt “won’t by itself…create a hostile environment.”