School gender policies—mandate or accommodate?

The Virginia Supreme Court last week ruled in favor of a physical education teacher who publicly criticized a proposed school district policy mandating the use of preferred gender pronouns.

An unsigned order handed down on Aug. 30 by the Virginia Supreme Court found that the Loudoun County school district’s perception of Tanner Cross’ comments as “trifling and annoying” did not justify infringing on his rights. Nor did the argument that his comments disrupted school operations.

“Cross was opposing a policy that might burden his freedoms of expression and religion by requiring him to speak and interact with students in a way that affirms gender transition, a concept he rejects for secular and spiritual reasons,” wrote the court. “Under such circumstances, Cross’s interest in making his public comments was compelling.”

Cross, a teacher at Leesburg Elementary School, criticized the gender pronoun policy at a May 25 school board meeting. Two days later, he was suspended. A state circuit court judge later ordered him reinstated, resulting in the appeal. Meanwhile, despite significant opposition, the school board adopted the offending policy after a contentious meeting on Aug. 11.

“Public employees cannot be forced to contradict their core beliefs just to keep a job,” said Alliance Defending Freedom (ADF) counsel Tyson Langhofer, who represents Cross. “Freedom—of speech and religious exercise—includes the freedom not to speak messages against our core beliefs.”

Virginia’s high court relied extensively on a federal appeals court ruling from earlier this year upholding the right of Nicholas Meriwether, a Christian professor at Ohio’s Shawnee State University, to decline to use a student’s preferred pronoun.

The court order does not end the case for Cross but preserves his teaching position until his lawsuit goes to trial. Even though the outspoken teacher did not directly challenge the policy, just his right to speak without punishment, the case was expanded last month to include a review of the policy.

In an amended complaint filed on Aug. 16, Loudoun County High School history teacher Monica Gill and Smart’s Mill Middle School English teacher Kim Wright joined the lawsuit. All three teachers argue the adopted policy violates their free-speech rights by forcing them to speak a message they believe is false—“that gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans, that our sex can change, and that a woman who identifies as a man really is a man, and vice versa.”

While the Virginia high court has not yet had to address the issue head-on in Cross’ case, it appears it will have that opportunity soon. On Friday, Peter Vlaming, a West Point, Va., high school teacher fired in December 2018 for refusing to refer to a female student with a male pronoun, appealed an order dismissing his case to the Virginia Supreme Court. A hearing on ADF’s motion for an order barring implementation of the Loudoun County gender policy has not been set.