From 'XX ≠ XY' to MAGA, schools test First Amendment rights of teachers when students aren't around

Americans who acknowledge the immutable sexual binary through their clothing and accessories have been ordered to remove or cover them up, in settings as varied as high school and professional athletic competitions and K-12 classrooms, under the rationale of respecting transgender people and not disrupting the educational environment.

A Colorado school district has added another setting in which variations of "XX-XY" aren't welcome, for the sake of "professional" appearance: student-free days at school.

Colorado Springs School District 11 reprimanded and interrogated Stacy Adair, an English language learner teacher at Wilson Elementary, for wearing an XX-XY Athletics shirt that reads "XX ≠ XY" to a professional development day a week before school started earlier this month, Adair claims.

Founded by national champion gymnast Jennifer Sey, the gender-critical brand has become ubiquitous through supporters of female-only sports wearing it to athletic events, notably WNBA games to support Indiana Fever sharpshooter Sophie Cunningham's public opposition to males in women's sports and pressure the league to clarify "women" means female.

Federal courts in New England have upheld censorship of an unbranded sexual-binary message in school settings, however: "XX" wristbands at girls' soccer games in which a male is allowed to compete and "only two genders" shirts at a middle school. 

The Supreme Court declined to review the latter, prompting Justices Samuel Alito and Clarence Thomas to accuse their colleagues of letting lower courts turn a blind eye to its First Amendment precedents.

"XX ≠ XY" is "just biologically factual" and no different than other fact-based shirts she wears, such as "Math Facts Matter, 3×3=9," Adair told the Denver Gazette. "There was no disruption" at the Aug. 6 teacher prep day. "No one said anything about it." (She told Fox News she wore the math shirt to a meeting with Education Secretary Linda McMahon.)

Her supervisor verbally reprimanded Adair a week later, the first she learned it offended someone and ordered her not to wear the shirt again, according to Adair. She said she was told someone reported her wardrobe choice to the Colorado Attorney General's anonymous reporting system Safe2Tell.

Colorado Springs is "one of those 'more conservative, safe, good' districts in Colorado ... and they still reprimanded her" for her clothing choices away from students, Adair's friend Erin Friday, executive director of Protect Kids Colorado, wrote on X.

Disagreement with a 'controversial viewpoint' alone is unconstitutional

The Foundation for Individual Rights and Expression, which defends the free speech rights of students and educators, told Just the News a reprimand for attire worn on a professional development day is legally problematic.

Two cases from the 9th U.S. Circuit Court of Appeals show the distinction between teachers' First Amendment rights when students are present versus when they are absent, chief supervising attorney Conor Fitzpatrick wrote in an email.

A three-judge panel took the unusual step of stripping legal immunity from an Oregon school principal who allegedly threatened teacher Eric Dodge with discipline if he again brought a Make America Great Again hat to teacher training sessions before the 2019-2020 school year. 

"Critically, the court explained that 'disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail expression of that viewpoint at a public school,'" Fitzpatrick said.

The panel emphasized that "fewer than five people complained" about Dodge's hat in a "cultural sensitivity and racial bias training" with 60 participants, one of them the non-district trainer, and that all trainings were completed without incident. 

A split panel this summer upheld the firing of educational specialist Roderick Theis for displaying gender-critical books in his office where he gave students assessments, distinguishing the case from the Dodge precedent by the presence of students.

U.S. District Judge Lawrence VanDyke's dissent implies students and a teacher set up Theis to get him fired by the rural Oregon district after he won a partial injunction, cornering Theis in his office before school to demand he show them the books and record the interaction.

"Nothing as directly on point as those two [9th Circuit cases] immediately comes to mind in the 10th Circuit," which oversees Colorado, Fitzpatrick said.

District 11 executive director of engagement Jessica Wise told Just the News that its board policy "establishes professional expectations for employee attire, including that clothing not disrupt the educational environment," to create "professional school environments centered on teaching and learning."

Wise said those "expectations apply consistently, without regard to viewpoint; the policy does not categorically prohibit particular messages or imagery." She declined to "comment on individual personnel matters" or answer further questions, particularly how the stated policy can apply when students aren't present or how it's not unconstitutionally vague.

The dress code in the employee handbook repeatedly refers to the interests of students when laying out expectations for staff attire, echoing Wise's invocation of the "educational environment" and "teaching and learning." 

The section stater the "professional appearance" of staff "positively" affects "student performance, achievement, and preparation for lifetime success [...] and indirectly, the conduct, morale, and performance of the District's students." 

Their clothes should "provide appropriate role modeling for students, promote a working and learning environment that is free from unnecessary disruption, and be conducive to high student and staff performance," the section also states.

Adair told the Gazette, in the newspaper's paraphrase, that she's seen teachers wear "T-shirts, badges and pins with images indicating support for" LGBTQ people over her two decades in the district, raising the question of whether the policy is enforced neutrally.

Ask union reps 'in the teachers lounge' where teachers' dues go

The veteran teacher already had a reputation in the Centennial State as a foe of teachers unions, making Adair a target for anonymous attacks and even a threat.

She helped defeat two union-backed school board members in 2021, resulting in the lapse of the district's contract with the union, which had prevented merit pay for teachers. "The union basically controlled the school district" through the contract, Adair told Fox News.

Adair also said she received a "veiled, threatening email" from a local plumber after publicly criticizing the union, prompting district security to ask her to "file a police report."

The Colorado Education Association also likely has a bone to pick with her shirt's message, considering it promotes "High Quality Professional Development around LGBTQ+ Identities" as part of its "LGBTQ+ Inclusion" agenda.

The Teacher Freedom Alliance, helmed by former Oklahoma State Superintendent of Public Instruction Ryan Walters, named Adair its inaugural Teacher of the Year last year, and her council member, Roland Rainey, chose to highlight Adair for a KOAA segment on outstanding constituents.

"Ask questions of your union – where do our dues go?" Adair told the 2025 Teacher Freedom Summit, suggesting TFA members ask union reps "publicly, like even in the teachers lounge," so other teachers can hear their evasiveness and hostile reactions.

This is another national example of "the left and the teachers unions exerting control over the schools," Walters told Fox News in a joint interview with Adair. "Any teacher to the right of Bernie Sanders, they want them out of the school system."