Virginia Supreme Court reinstates teacher who objected to transgender pronoun mandate

Denver Newsroom, Aug 31, 2021 / 13:35 pm

Virginia’s Supreme Court has sided with a teacher after he challenged a school district mandate of affirming transgender identities.

Byron “Tanner” Cross, a physical education teacher at Leesburg Elementary School in the Loudoun County Public School District, spoke at a May school board meeting against policies requiring teachers to refer to students by their preferred gender pronouns. After he was suspended by his school district for allegedly making a “disruptive impact,” Virginia’s Supreme Court on Monday ruled that he should not have been suspended.

The legal group representing the teacher welcomed Monday’s decision.

“Teachers shouldn’t be forced to promote ideologies that are harmful to their students and that they believe are false, nor should they be silenced for commenting at a public meeting,” said Tyson Langhofer, senior counsel with Alliance Defending Freedom and director of its Center for Academic Freedom.

On Aug. 30 the Virginia Supreme Court affirmed a lower court’s order that Cross be reinstated to his teaching position. 

Cross was placed on paid administrative leave by the Loudoun school district on May 27. He had objected to two proposed school policies during a public comment session of a May 25 school board meeting. Cross had said he could not “affirm that a biological boy can be a girl, and vice versa,” citing his Christian faith.

The school district’s proposed policies would require that students be addressed by their preferred gender pronouns, rather than the pronouns corresponding with their biological sex.

“The lower court’s decision was a well-reasoned application of the facts to clearly established law, as the Virginia Supreme Court found,” said Langhofer.

In June, a judge of the Loudoun County Circuit Court found that, in balancing Cross’ free speech rights with the school board’s claims that his speech was disruptive, Cross’ interests outweighed those of the school board. Cross’ “speech and religious content” were “central” to his suspension, the court ruled. It was clear that he was speaking as a citizen, and not in his official teaching capacity, on a matter of public concern, the court said.

Nicholas Gothard, communications director of the LGBT advocacy group Equality Loudoun, is concerned about the message sent by not using preferred gender pronouns.

“When it comes from the children that this is what they’d like to be called and this is what makes them feel most safe and most belonging in their school, it’s really a matter of are we looking out for our kids,” said Gothard, according to WUSA News. “What we need to be focused on is that the school systems ought to be affirming and safe places for our trans students.”

Equality Loudoun’s Facebook page on Aug. 28 shared a Facebook post that said “Pronouns aren’t preferred they’re mandatory.”

The school district’s initial decision to suspend Cross had cited “allegations that (Cross) engaged in conduct that had a disruptive impact on the operations of Leesburg Elementary School.” 

During his suspension, Cross was forbidden from accessing school property and attending school-sponsored events. The school district cited, as evidence of disruption, six emails from five families of students asking that their children not be taught by Cross.

Cross has claimed that five other school district employees wished to speak up on the pronoun issue but had declined to do so, due to the district’s action against him.

Langhofer said that Alliance Defending Freedom attorneys have amended their lawsuit to challenge the school district’s policy on behalf of several teachers. “Loudoun County Public Schools is now requiring all teachers and students to deny truths about what it means to be male and female and compelling them to call students by their chosen pronouns or face punishment,” Langhofer said.

“Public employees cannot be forced to contradict their core beliefs just to keep a job,” he said.

At least two other teachers seek to join Cross’ lawsuit: Monica Gill, a Loudoun County High School history teacher, and Kim Wright, an English teacher at Smart’s Mill Middle School.

The amended legal complaint, filed Aug. 20, says that if the teachers comply with the new policy “they would be forced to communicate 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.”

“But if they refer to students based on their biological sex, they communicate the views they actually believe—that our sex shapes who we are as humans, that this sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires,” the complaint continued.

The complaint said it is not disruptive to “civilly disagree” about important issues

“A truly tolerant society can permit such differences and accommodate all views, and so can a school district,” said the complaint, which charged that school board members have “refused to find middle ground.”

“They have made this case about far more than titles or pronouns; they have taken a side in a national debate over competing views of human nature and compelled conformity to, and support for, only one view.”

The Virginia Supreme Court’s ruling in Cross’ case cited a March 2021 ruling from the U.S. Court of Appeals for the Sixth Circuit. That ruling, in the case of Meriwether v. The Trustees of Shawnee State University, said a university professor in Ohio had the right to legally challenge a policy mandating the use of preferred student pronouns.

(Story continues below)

The U.S. Equal Employment Opportunity Commission’s push to make sexual orientation and gender identity a protected category in employment law could bring pronoun controversies to many workplaces across the country.

Editor's note, 2021 Sept. 2 1409: An earlier version of this story identified Nicholas Gothard as Equality Loudoun's executive director, and characterized his comment to WUSA as referring to the state Supreme Court decision, and not the issue more generally. It has been corrected.