Transgender Students and the First Amendment

Abstract

Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene.

This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment. Comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law. Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens protection of all controversial student speech.

Keywords: First Amendment, transgender children, LGBTQ, constitutional law