These two cases are but skirmishes in the wider culture war that has centered itself (for the moment) on transgender people. Whether it’s Target or the Alabama legislature concerning itself with the perceived fairness of athletic playing fields, it’s evident that we are having some sort of moment in which conservatives and others with clout are finding it convenient, advantageous or simply all too easy to attack a vulnerable population with little access to the levers of political power. And while this wave of brazen bigotry is new, the tools to judge it — at least when it comes to student speech cases like those of L.B. and Liam — are the same ones we’ve had for the better part of a century.
While American students have long sought redress in the courts (such as a 1919 Iowa case over a graduating senior who refused to wear an odorously fumigated cap and gown or a 1923 Arkansas suit by a female student who was suspended for wearing talcum powder on her face), the legal standard for deciding public school student speech cases is the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, a 1969 case that upheld the right of high school students to wear black armbands to protest the Vietnam War. In Tinker, the Court recognized the rights of students to engage in speech — especially political speech — on school grounds so long as the expression did not cause a “material and substantial” disruption with school operations.
Perhaps in the fullness of time Liam will recognize that the shirt is ignorant and bigoted nonsense wrapped in the guise of his parents’ understanding of “science.” It’s more likely he won’t — since the people most central in his life have already set him down a path of intolerance.
The First Amendment, though, doesn’t permit us to government engineer our way to a more perfect society in Liam’s case.
But for one girl who only wanted to wear a dress to her high school graduation, Mississippi school administrators didn’t have to so actively and readily make her life worse