The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation on sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers’ classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care. Such attacks are likely to only accelerate given the success of some right-wing politicians in making anti-trans messaging a cornerstone of their 2024 election strategies and the Supreme Court’s decision in U.S. v. Skrmetti upholding states’ bans on gender-affirming care for minors.
This Article breaks new ground in two respects. First, it focuses on a First Amendment issue that has not yet been addressed by the courts or in the scholarly literature: namely, whether the Supreme Court’s school speech cases would permit states or public-school officials to restrict student speech advocating gender-affirming care or advising a peer to seek it in a state where such care is now unlawful to minors. This Article is also the first to apply the history of the battles over anti-slavery speech and of the Nation’s Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.
Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court’s more recent school speech cases, however, have granted greater leeway for restrictions on student speech. Opponents of gender-affirming care for minors are therefore likely to try to exploit the Court’s post-Tinker jurisprudence to justify restricting or punishing student speech advocating gender-affirming care. This Article argues that the Court’s post-Tinker school speech cases cannot and should not be read to justify greater restrictions on such speech than would otherwise be permissible under Tinker. This Article further argues that extending the Court’s post-Tinker cases to allow governmental or public-school officials to punish student speech advocating gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation’s Second Founding.
* Professor of Law and Judge J. Quint Salmon & Anne Salmon Endowed Chair, University of Pittsburgh School of Law. The Author thanks Professors Dara Purvis and Scott Skinner-Thompson for their insightful comments and suggestions and the faculty at Boston University School of Law for their thoughtful questions and feedback on this Article at a faculty workshop. My special thanks to the OUTLaw chapter at Pitt Law (and especially to Sarah Scott and Connor Oswell) for their invaluable feedback and input on this Article at the inaugural OUTLaw Student-Faculty Scholarly Workshop. Last, to my past, present, and future LGBTQIA+ students and to LGBTQIA+ students elsewhere who may read this Article: I see you; I believe you when you say who you are; and I believe you have the right to demand respect.
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