The Virginia Supreme Court this week upheld a lower court’s decision ordering Loudoun County Public Schools to reinstate Tanner Cross, an elementary gym school teacher who was suspended after stating that he would defy a recently passed policy requiring teachers to address transgender students by their preferred names and pronouns.
Cross was placed on leave, barred from school grounds, and forbidden from speaking at future board meetings after he spoke out at a school board meeting in May, saying his religious beliefs did not allow him to “lie” by affirming transgender students’ gender identities. He later sued the school board, claiming it had violated his right to free speech, as well as his free exercise of religion as guaranteed by the Virginia Constitution.
In June, Loudoun County Circuit Court Judge James Plowman ruled that the school district must reinstate Cross while his lawsuit moves forward on its merits. In his decision, Plowman said the school district’s decision to suspend Cross was both retaliatory and unconstitutional, violating not only Cross’ First Amendment rights and attempting to silence others who disagree with LCPS’s pro-transgender policy from speaking publicly against it. LCPS later appealed that decision.
But on Monday, the Virginia Supreme Court upheld Plowman’s decision, finding that LCPS had failed to prove that “the circuit court abused its discretion.” The justices also signaled that the courts are likely to side with Cross in his lawsuit challenging the gender-affirming policy, reports The Washington Post.
“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,” the judges wrote in their decision. “Although the [Loudoun County School] Board may have considered Cross’ speech to be ‘a trifling and annoying instance of individual distasteful abuse of a privilege,’ we believe Cross has a strong claim to the view that his public dissent implicates ‘fundamental societal values’ deeply embedded in our Constitutional Republic.”
In their order, the justices also took issue with the school district’s main reason for suspending Cross, which was that his comments about transgender rights “significantly interfered” with day-to-day school operations and “impair[ed] the maintenance of discipline, impede[d] the performance of his duties… undermine[d] the mission of Leesburg Elementary as well as Loudoun County Public Schools, and are in conflict with [Cross’] responsibilities as an employee of Loudoun County Public Schools.”
Rather, the justices maintained, the school district failed to provide evidence that Cross’ presence in the school would be disruptive or somehow harm his students.
“[A]lthough the Defendants assert the circuit court should have considered that Cross’ public comments necessitated that students’ schedules be changed or that they miss required physical education instruction, they presented no evidence of that to the circuit court,” the justices wrote. “There was also no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children, nor was there any clear evidence Principal Lacey has diverted material time from his other obligations to manage the fallout from Cross’ public comment.
“The only disruption the Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children,” the justices continued. “However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’, nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.”
Tyson Langhofer, senior counsel for Alliance Defending Freedom, the anti-LGBTQ group representing Cross, praised the Supreme Court’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,” Langhofer said in a statement. “The lower court’s decision was a well-reasoned application of the facts to clearly established law, as the Virginia Supreme Court found. But because 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, we have moved to amend our lawsuit to challenge that policy on behalf of multiple faculty members. Public employees cannot be forced to contradict their core beliefs just to keep a job.”
ADF recently submitted a motion to the court asking to add two additional plaintiffs, Monica Gill and Kimberly Wright, teachers who also oppose the district’s gender-affirming policies based on their religious beliefs. It has also asked the court to block LCPS from enforcing its pro-transgender policy while the lawsuit moves forward. A ruling on both of those motions is expected later this week.
Loudoun County Public Schools spokesman Wayde Byard declined comment, saying it is the district’s policy not to discuss pending litigation.
But LGBTQ advocates were disappointed by the Supreme Court’s decision, with some saying it will encourage teachers to “harm” transgender students by publicly disrespecting them, either by deadnaming them or misgendering them.
One Fairfax County Public Schools trans student — whose name and identity are being kept confidential for their protection — expressed frustration, saying they “feel dehumanized” by the decision, according to a news release from GLSEN Northern Virginia, the Pride Liberation Project, and FCPS Pride, the organization representing LGBTQ students and employees in nearby Fairfax County.
Another student said they were “extremely stressed and anxious that their basic dignity is under attack.”
The three LGBTQ advocacy organizations also called on local county and school officials to pledge to support LGBTQ people in local school systems, especially in light of the court’s failure to protect trans youth.
“A ruling like this rolls back the clock at a time when trans students need our support. If the Supreme Court of Virginia will not support, then their local officials must,” David Aponte, the chair of GLSEN NOVA, said in a statement.
“Fairfax elected and appointed officials must assure that they will stand up for LGBTQIA+ students in this crisis,” Robert Rigby, Jr., a co-President of FCPS Pride, said in a statement. “Support during times of sunshine is great, but we need you by our side during the storm.”