Law & Courts

Virginia Supreme Court Backs Teacher Who Spoke Against Transgender Policy at Board Meeting

By Mark Walsh — August 31, 2021 3 min read
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Virginia’s highest court has upheld an injunction ordering the reinstatement, on free speech grounds, of a teacher who was suspended after speaking up at a school board meeting against a proposed policy requiring respect for transgender students.

The Virginia Supreme Court on Monday ruled without dissent in favor of Tanner Cross, an elementary school physical education teacher in the Loudoun County school district in suburban Washington.

Cross spoke at a May 25 meeting of the Loudoun County school board against a then-proposed policy that would, among other things, require school staff members to use the chosen names and pronouns of transgender students.

“I’m a teacher but I serve God first,” Cross said as a public speaker at the meeting. “And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion.”

The next day, the 82,000-student district put Cross on administrative leave with pay and limited his access to school events, asserting that his comments had a “disruptive impact” on his elementary school, such as complaints and requests from parents that Cross have no contact with their children.

Cross sued the district with the aid of Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization, raising First Amendment free speech and free exercise of religion claims as well as similar claims under the state constitution.

A state trial judge in June issued a temporary injunction in favor of the teacher after analyzing the case under Pickering v. Board of Education of Township High School District 205, a 1968 Supreme Court decision which held that a teacher’s speech on a matter of public concern is protected under the First Amendment if it outweighs the employer’s interests in workplace efficiency and lack of disruption.

The school district and its top officials sought review in the Virginia Supreme Court. In its Aug. 30 decision in Loudoun County School Board v. Cross, the state high court upheld the lower court’s injunction in favor of the teacher.

“[I]t is settled law that the government may not take adverse employment actions against its employees in reprisal for their exercising their right to speak on matters of public concern,” the seven-member Virginia Supreme Court said in the unsigned opinion (with one member not participating) that cites the U.S. Supreme Court’s Pickering decision.

The state high court said it had to apply a “difficult” balancing of the teacher’s interest in speaking on a public matter and the school board’s interest in efficiency.

The court said Cross had a strong interest in making his comments at a public school board meeting about a proposed transgender policy that offended his religious beliefs.

“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,” the court said. “Under such circumstances, Cross’ interest in making his public comments was compelling.”

The high court agreed with the lower court that the school board’s interest in disciplining Cross was “comparatively weak.”

“The only disruption the defendants can point to is that a tiny minority of parents requested that Cross not interact with their children,” the state high court said. “There was … no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children.”

The opinion did not take note of the fact that on Aug. 11, after a series of contentious public meetings, the Loudoun County school board gave final approval to the transgender policy that Cross had spoken against.

The Loudoun system acted in response to a 2020 Virginia state law requiring school districts to adopt additional protections for transgender students. (A handful of other school boards in the state were still debating such policies in late August.)

Loudoun County began a new school year on Aug. 26. Alliance Defending Freedom recently asked the trial court to allow an amended lawsuit that adds two other teachers who object to the transgender policy and which seeks to block the policy itself.

“If plaintiffs were to comply with defendants’ demands, 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,” the amended suit says.

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