Within a couple months, two lesbian students on opposite sides of the country have both been reprimanded for wearing a T-shirt that read “Nobody knows I’m a lesbian.”
A student in Northern California, who only identifies to the media as T.V., was sent home for wearing the shirt and is now suing two administration officials, according to the progressive news site The New Civil Rights Movement. She made the complaint last week and is represented by the ACLU. Administration officials gave a hodge-podge of reasons for sending her home, saying that her shirt was “an open invitation to sex,” could be “gang-related,” was “disruptive,” and that she couldn’t wear a shirt that stated her “personal choices and beliefs.”
Although T.V. tried to explain that sex and sexuality were not the same, an administration official simply told her she was wrong and that her T-shirt was about sex.
Meanwhile, in South Carolina, Briana Popour was suspended for wearing the shirt in September. Popour, who attends Chesnee High School, was told that the shirt was disruptive to students.
Chesnee’s student handbook says students are not allowed to wear clothing deemed “distracting, revealing, overly suggestive, or otherwise disruptive,” and does not reference sexual orientation. Popour’s mother, Barbara Popour, was told by a school official that he did not want students wearing a shirt that “says anything about lesbians, gays, or bisexuals,” and simply told the student that “not everything is in the handbook.”
The suspension was eventually overturned after administration stated the shirt was only offensive and distracting to adults, not to students.
The issue of how school administrators respond to LGBT students’ expression of their sexuality is not going away. Earlier this year, a gay student in Colorado who wanted to come out during his valedictorian speech was asked to keep his announcement out of the speech, and students in Texas who chose to wear T-shirts that read “Gay O.K.” were asked to remove the shirts because they were apparently considered “disruptive.”
The Colorado school district that canceled the gay valedictorian’s speech, Twin Peaks Charter Academy, went through an independent investigation that did not attribute blame to administrators and said the cancellation was the result of a lack of communication between the student and his principal. The principal in question also outed the student to his parents after the editing of his speech, which was another point of contention between the student and the school.
The Texas students who wore “Gay O.K.” T-shirts, which were aimed at stopping bullying of gay students, were eventually vindicated by the McKinney Independent School District. A spokesperson for the district said “we told the administration that they should have asked the students to take off the shirts or change shirts … we told them they have every right to wear the shirts.”
Administrators often throw around the term “disruptive” as a catch-all legal protection because the U.S. Supreme Court case Tinker v. Des Moines established a “disruption test” — which allows administrators a certain amount of discretion in deciding whether student expression will “interfere with the requirements of appropriate discipline in the operation of the school,” as Justice Abe Fortas wrote in the majority opinion.
However, it’s becoming more difficult for administrators to argue that students expressing LGBT pride is disruptive. In 2007, the ACLU sued Ponce de Leon High School in Florida when the school argued the student writing “gay pride” in notebooks was disruptive. The school was ordered to stop restrictions on her First Amendment rights.
School officials may keep the handbook’s regulation of student expression through items of clothing intentionally broad in order to maintain this discretion. Administrators can’t show bias in how they enforce dress codes by, for example, stating that students can’t wear any messages on shirts, but allowing a student with message they find favorable to continue wearing the shirt while telling a student with a T-shirt expressing a different viewpoint to remove theirs.
The Tinker case also allows administrators to regulate “lewd” student expression, which may be why a school official kept insisting that T.V.’s shirt was explicitly sexual in nature. In the case of Twins Peak Academy, the administration said they do not allow heterosexual students to discuss their sexuality either, in an attempt to defend themselves from charges of unequal treatment of students, which case law does not protect.
However, assuming that were the case, it’s difficult to compare a heterosexual student discussing their sexuality with a lesbian, gay, or bisexual person expressing pride in their sexual orientation, since the intention behind doing so is completely different for the latter compared to the former. Perhaps the case of T.V.’s shirt will shed some light on whether the courts consider all expressions of sexual orientation the same, or if administrators can reduce students’ LGBT pride to supposedly “lewd” statements about sex.