Is VA court right to reinstate teacher not using trans pronouns?


Fact Box

  • The term ‘Transgender’ often describes someone whose “personal identity and gender does not correspond with their birth sex.”
  • About 0.58% of adults in the United States identify as transgender with 34,500 identifying as trans in Virginia.  
  • On August 31, 2021, the Supreme Court of Virginia reinstated gym teacher Tanner Cross on grounds of free speech, allowing him to refrain from using transgender pronouns at Leesburg Elementary School. 
  • On July 1, 2020, Virginia was the first southern state to enact laws prohibiting discrimination of sexual orientation and gender identity with the Virginia Human Right Act.
  • Under Title IX, US schools are required to treat transgender students in line with their preferred gender identity, allowing them to use restrooms of choice, dress of choice, and use their chosen pronouns. Religious exemptions do apply. 
  • In Bostock v. Clayton County 2020, the Supreme Court ruled that “it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex.”

Grace (No)

Virginia gym teacher Byron Cross should not have been reinstated after his refusal to use students' correct pronouns. There are several reasons why the Virginia Supreme Court's ruling is problematic, beginning with Cross's original reasoning. At a school board meeting in May, Cross asserted that he would not respect trans students' pronouns because it was against his religious beliefs and it would be 'abuse to a child' and 'sinning against our God.'

While anyone can practice any religion, certain jobs have necessary requirements. A doctor who's a Jehovah's Witness, for example, can't deny his patients' blood transfusions because of his beliefs. Similarly, teachers have a professional obligation to create an environment conducive to learning. Pointedly misgendering a student singles them out, makes them feel unsafe, and perpetuates high rates of suicide and self-harm among trans students. 

Although Cross was technically exercising his free speech, this doesn't mean he's free from consequences. Everyone's familiar with the issue of screaming 'Fire!' in a crowded theatre. Yes, you can do it, but you might get arrested. Similarly, Cross can say whatever he wants, but the school can respond accordingly. Knowing that his actions harm trans students should be enough to remove him from his position. 

Some conservative commentators noted that Cross was enforcing the scientific validity of biological sex. According to the Canadian Institutes of Health Research, this is negated, as sex is referred to as 'biological attributes,' while gender refers to 'socially constructed roles, behaviours, expressions and identities.' Cross' refusal to respect pronouns teaches students outdated, inaccurate statements about the nature of gender—reason enough to keep him out of the classroom. 

Veronica (Yes) 

Byron 'Tanner' Cross was suspended after comments he offered in a public forum as a private citizen. Even though he is a school employee, that does not remove his right to free speech. As the first judge in the case stated, in retaliation against Mr. Cross, the school district punished him for exercising his First Amendment rights. 

LCPS also took the unnecessary step of banning Cross from attending or speaking at future school board meetings (and from school property and events). To bar him from a public venue is a violation of his rights as a private citizen. Cross's comments were partially based on his personal and philosophical beliefs, and the sanctions against him were also an infringement on his free exercise of religion. Punishing Cross in this manner dissuades other individuals from speaking for fear they might face retaliation, effectively curbing their rights as well. 

In upholding the decision to reinstate Cross, the court noted that at the time Cross was suspended, the policy he spoke about was still being debated. So LCPS prematurely acted against him on the assumption that first, the policy would definitely be approved, and second, after approval Cross would violate the policy. LCPS argued that Cross was suspended not because of his speech directly but because his comments caused disruption in school operations. However, they produced just six parent emails as evidence of disruption. In fact, LCPS started retaliating against Cross after only one email had been received. In a school of nearly 400 students, it's clear that half a dozen emails are not a sufficient disruption to deny someone their freedom of speech.

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