Censorship is no way to get people to respect transgender rights

The Hill

2 days ago

There was good and bad news for transgender rights in the U.S. last week. The good news was that a transgender high school athlete won two events in a girls' state track meet. And the bad news was that the Supreme Court allowed a school to censor a student's expression of the belief that there are only two genders.
Suppressing ideas is never a good look in the U.S., whose Bill of Rights presupposes a freedom of speech that cannot be legislated away. And if we deny that freedom to anyone, then all of us — including transgender people — will lose.
Free speech was on full display at the California track-and-field championship in Clovis, Calif. Under a new rule promulgated by the state interscholastic federation, the girls who finished just behind transgender athlete AB Hernandez in the high jump and triple jump were elevated to share her medals.
That seemed just fine to Hernandez and also the other girls on the podium, who all exchanged high-fives and hugs. But it was not okay with protesters who gathered outside the stadium, chanting 'No boys in girls' sports.' Taylor Starling, a cross-country runner went on Fox News with her father to denounce 'guys that are taking away girls' awards, their medals, their spots.' Starling is part of a lawsuit alleging that she was demoted from her varsity track and field team when a transgender athlete took her spot. President Trump, meanwhile, threatened 'large scale fines' against California for allowing a 'Biological male' to compete the 'Girls State Finals.'
Hernandez's mother fired back, denouncing people 'in positions of power' for harassing her daughter. Hernandez also spoke up against her critics: 'I'm still a child, you're an adult, and for you to act like a child shows how you are as a person.' But as petty and small as it may be for Hernandez's detractors to malign her as a 'boy' or a 'male,' they have the right to say it — just as I have the right to call them out. That's called America.
Alas, that's also a memo that educators in Middleborough, Mass. seem to have missed. Earlier this spring, they sent home a seventh-grader for wearing a T-shirt declaring, 'There Are Only Two Genders' because 'other students had complained about the T-shirt and that it had 'made them upset.'' Then the student came back in a T-shirt that said, 'There are CENSORED Genders.' The school told him that wouldn't be allowed, either.
I'm sure the shirts did make some people upset, but I also imagine that some were upset by a student at the same school who wore a T-shirt that read, 'HE SHE THEY IT'S ALL OKAY.' Once we decide to censor upsetting speech, we won't be able to speak at all.
That's why the Supreme Court ruled in 1969 that 13-year-old Mary Beth Tinker could wear a black armband to her Iowa middle school to protest America's war in Vietnam. Schools cannot suppress speech out of 'a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' the court declared in Tinker v. Des Moines. The only justifiable reason for restricting speech was if it threatened 'material and substantial interference with schoolwork or discipline.'
Did the T-shirt saying there are only two genders pose that kind of danger? Of course not. But a federal trial judge ruled that the school could censor the student anyway, because he was threatening 'the rights of others' to attend school 'without being confronted by messages attacking their identities.'
So what would prevent a school from prohibiting the 'HE SHE THEY' shirt, on the grounds that it threatened the identities of devout Christians and Muslims? And couldn't a school also bar speech in support of AB Hernandez, whose critics might claim that their own gender identities were under fire?
In each case, the answer is yes. Nevertheless, an appeals court upheld the Massachusetts judge's decision. And last week, the Supreme Court declined to hear the case on appeal.
In doing so, it turned its back on Tinker v. Des Moines and its ringing affirmation of freedom, which is fundamental to our shared identity as Americans.
'Any word spoken in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance,' the Tinker ruling acknowledged. 'But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength.'
In California, AB Hernandez demonstrated precisely that strength. But in Massachusetts, school officials closed off speech out of fear. That's a hazard to the freedom of everyone, no matter what they think about gender. And if you think otherwise, watch out. Someday soon, the censors may be coming for you.
Jonathan Zimmerman teaches education and history at the University of Pennsylvania and serves on the advisory board of the Albert Lepage Center for History in the Public Interest.