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Virginia Supreme Court Panel Orders Reinstatement of Gym Teacher Suspended for Publicly Opposing School District’s Proposed Policy on Transgender Students

Posted on: September 2nd, 2021 by Art Leonard No Comments


On August 30 a three-judge panel of the Virginia Supreme Court upheld a trial court’s order that Loudoun County School Board must reinstate Leesburg Elementary School gym teacher Tanner Cross, who was placed on paid leave after he spoke out at a School Board meeting against a proposed policy that would require teachers not to misgender transgender students.  Loudoun County School Board v. Cross, Record No. 210584, Circuit Court No. CL21003254-00.  The Court agreed with the trial judge that Cross’s statement probably enjoyed freedom of speech clause protection under the Virginia Constitution, applying principles developed by the U.S. Supreme Court under the 1st Amendment concerning constitutional protection for public employee speech.

A recent Virginia statute, Code Section 22.1-23.3, mandated that the state’s Department of Education “develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools.”  The statute also requires school boards to adopt policies “that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.”

On May 25, 2021, the Board held a public meeting at which it discussed a proposed policy that would allow transgender students to use a name different than their legal name, allow them to use gender pronouns different from those corresponding to their “biological sex,” would require school staff to use students’ chosen names and gender pronouns, and would allow students to use school facilities and participate in extra-curricular activities consistent with their “chosen” gender identity.

Cross, who had taught at Leesburg Elementary for eight years, was strongly opposed to the proposed policy, and attended the public meeting to speak during the “public comment” period.  He claimed to be speaking “out of love for those who suffer with gender dysphoria,” referencing a 60 Minutes feature about “young people who transitioned” and then “felt led astray because of lack of pushback, or how easy it was to make physical changes in their bodies in just three months. They are now de-transitioning,” he said.  He stated opposition to the proposed policy because “it will damage children, defile the holy image of God.”

Cross said, “I’m a teacher but I serve God first.  And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion.  It’s lying to a child.  It’s abuse to a child.  And it’s sinning against our God.”

Cross’s comments generated discussion among Leesburg parents on social media, and after one parent called the school authorities to ask that Cross not have any contact with her child, a supervisor told Cross that he was being placed on administrative leave with pay pending an “investigation.”  Then the Assistant Superintendent sent a letter to Cross stating he was under investigation “for allegations he engaged in conduct that had a disruptive impact on the operations of Leesburg Elementary,” and that he was banned from Loudoun County Public Schools property unless he got permission from the Leesburg Elementary principal.  He was also informed he would not be permitted to speak on this topic at future Board meetings, and he was relieved from his normal duty of joining with other teachers to greet students as they arrived at the school. All Leesburg Elementary parents and staff received an email announcing his suspension.

Cross obtained representation from Alliance Defending Freedom (ADF), a litigation organization that frequently opposes LGBTQ rights on religious grounds.  ADF filed a state court lawsuit claiming that the Loudoun County Board’s actions violated Cross’s free speech and free exercise of religion rights, and sought an immediate order that he be reinstated while the case is litigated.  The trial court issued the order on free speech grounds, and the school board appealed.  The court was less certain that Cross could prevail on his religious freedom claim, and decided that the school board’s conclusion that Cross would violate the policy based on his statements was premature, because he could avoid compromising his believes by avoiding the use of gender pronouns for students.  (Such pre-trial orders are reviewed for “abuse of discretion” by a three-judge panel of the seven-member state Supreme Court.)

Under a 1968 U.S. Supreme Court decision, Pickering v. Board of Education, 391 U.S. 563, a public employee who speaks as a citizen on a matter of public interest is protected under the 1st Amendment from retaliation by their government employer unless their speech disrupts the operation of the employee’s workplace.  The Virginia Supreme Court pointed out that it has generally followed federal precedents in interpreting the free speech provision of the state constitution.

In this case, relying on parental discussion on social media and the phone calls that the district eventually received from several parents asking that their children not be exposed to Mr. Cross, the school board claimed that “disruption” of the elementary school justified its action of suspending Cross.  It also pointed to his statement signaling that he could not comply with the requirement in the proposed policy that teachers use transgender students’ desired names and genders.  The board had ultimately adopted the proposed policy, but there is no indication that there were any transgender children in Cross’s gym classes, although one of the parents who called to complain in response to Cross’s remarks is a transgender individual who reported that Cross’s remarks had upset her children.

The trial judge concluded that the school board had not presented sufficient evidence of actual disruption of the elementary school’s operations to justify suspending Cross for an “investigation” of his remarks, and the Virginia Supreme Court agreed, in a unanimous opinion by three of its members, Justices Arthur Kelsey, Stephen R. McCullough, and Teresa M. Chafin.

Cross’s state court lawsuit relies on Article I, Section 12 of Virginia’s Constitution, which essentially protects the same right of free speech as the federal First Amendment.  The court has adopted a “two-step inquiry” to determine whether the government’s action violates this provision, asking first whether the public employee’s speech was on a matter of public concern, and second whether the employee’s interest in making his public comments outweighed the government’s “interest in providing effective and efficient services to the public,” which is essentially the same test the U.S Supreme Court applies under its Pickering decision.

Cross made his statements at a public Board meeting where the proposed transgender policy was being discussed.  The court quote a decision by the U.S. Court of Appeals for the 4th Circuit, which has jurisdiction over federal appeals from Virginia, holding that “both the teacher and the public are centrally interested in frank and open discussion of agenda items at public meetings.” Furthermore, the court pointed out, “In addition to expressing his religious views, Cross’ comments also addressed his belief that allowing children to transition genders can harm their physical and mental wellbeing.  This is a matter of obvious and significant interest to Cross as a teacher and to the general public.”  And, of course, the court noted that 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.”  Thus, the court concluded that Cross’s interest in making his points at the meeting was “compelling.”  Indeed, concluded the court on this point, “We believe Cross has a strong claim to the view that his public dissent implicates ‘fundamental societal values’ deeply embedded in our Constitutional Republic.”

As against this, the court asserted that the defendants had “not identified an abuse of discretion in the circuit court’s conclusion that [the board’s] interest in disciplining Cross was comparatively weak.”  In particular, the court rejected the board’s argument that the trial judge did not give adequate weight to the board’s contention that Cross’s statements had and would continue to have a disruptive effect on Leesburg Elementary School’s operations.  The Supreme Court panel agreed with the lower court that the evidence of disruption was weak, and it pointed out that the Board’s argument that Cross had announced that he would not comply with the policy if it was enacted was not raised in the letter sent to Cross announcing his suspension.

Cross had followed up his public comments with an email to the Board and the school superintendent, stating his unwillingness to comply with the transgender policy.  But, the court pointed out, the Board took no action based on that email, because, as a private communication rather than a public statement, it had not caused any particular disruption at the school.  The court also commented that the Board had presented “no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children,” or that dealing with “managing fallout from Cross’ public comment” had taken up any significant amount of the principal’s time.

“The only disruption that Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children,” wrote the court.  “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.”

The court also noted two judicial opinions that would support the conclusion that “Cross has a potentially successful claim.”  In one, Meriwether v. Hartop, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit found that an Indiana public university violated a professor’s 1st Amendment free speech rights when it disciplined him for misgendering a student in class.  In another, while finding that a teacher did not have a 1st Amendment right to disobey a school’s transgender policy, a federal trial court in Indiana observed that “the teacher is not asserting that he was disciplined for criticizing or opposing the policy.”

Thus, the court’s opinion is limited in focusing on the right of the teacher to state his views at a public board meeting on a matter that was being considered by the board, without holding that Cross would necessarily enjoyed constitutional protection from discipline if he actually disobeyed the policy by misgendering students at the school, which would necessarily raise questions under a federal statute, Title IX of the Education Amendments of 1972, whose possible impact was not considered by the court in this case.

As of the end of August, this opinion had not been published on Westlaw or Lexis or the court’s website. We speculate that because it is a three-judge panel ruling on an interlocutory appeal, it would not be deemed suitable for publication as an opinion of the court.

NY Judge Orders Confidentiality for Transgender Professional

Posted on: June 4th, 2013 by Art Leonard No Comments

Ruling on an issue that he characterized as “apparently one of national first impression,” New York Supreme Court Justice Sam D. Walker (Westchester County) ordered the New York State Education Department, which administers the system of professional licensing throughout the state, to “issue a new professional license and license number to Jane Doe and to conceal from the public any cross reference to the prior license held by John Doe,” as well as prohibiting the Department “from making available for public inspection or copying all records relating to the prior identity of Jane Doe, her name change or any references or cross references to her old license including this Court order and all related correspondence between petitioner, his counsel and the New York State Education Department.”  Justice Walker also ordered that the record of the court proceeding be sealed, only to be opened by court order “for good cause shown or at the request of Jane Doe.”  Matter of John Doe, NYLJ 1202601879249 (N.Y. Supreme Ct., Westchester Co., May 16, 2013).

The court’s opinion, published on-line by the New York Law Journal on June 3, addresses a rarely discussed side-effect of gender transition: the difficulties that a transgender person may encounter while trying to continue her professional career with her newly-achieved gender recognition. 

In keeping with the need for confidentiality, Justice Walker’s opinion does not specify what professional license is at issue, only to relate that the petitioner’s profession involves interaction with construction contractors and workers in the construction trades, so one speculates that she may be an architect.  In any event, after already being launched on a professional career, the petitioner underwent gender transition from male to female and obtained a court order changing her name on August 2, 2012.  She then applied to the State Education Department to have her professional license reissued under a new number in her new name, and to have her old license and all references to it eliminated from the Department’s records.  The Department denied her request, asserting that to grant it would undermine the Department’s charge to “protect the public who have a right to determine the credentials and/or disciplinary history of individuals who may provide or have provided professional services to them.”

In an affidavit accompanying her petition to the court, Doe alleges that “she may be placed in danger or subject to harassment, threats, bullying or other forms of discrimination if the record of her new license number is connected to her previous license number and thereby [create] a public record of her transgender status.”  Justice Walker found, contrary to the Department’s allegations, that this was not just a “generalized risk to gay, lesbian, bisexual and transgendered people,” as asserted by the Department, which had insisted that it could not respond affirmatively to Doe’s petition without evidence of “a threat of harm to her personally.”  Instead, he took “judicial notice of the continuing increase in reports of violence against lesbian, gay, bisexual and transgender people.”  Certainly the recent rash of anti-gay attacks in New York City support such judicial notice. 

Walker took note of the inclusion of gender identity in the 2009 enactment of amendments to the federal hate crimes statute, which responded to extensive documentation of anti-transgender violence presented to Congress.  He also noted statistics from the National Anti-Violence Project documenting the high percentage of transgender people who have experienced harassment, attacks, assaults, and exclusion from places of public accommodation and workplaces.  Doe alleged that her transgender status was not known in her current workplace, and she wanted to keep it that way due to the nature of her work and the clients she served.  She pointed out that in the course of her work “she is exposed on a daily basis to crude comments, bigoted jokes and intolerance towards the transgender.”  She also alleged that outside of work she had been targeted in several specific incidents.  She told the court that “she is fearful of the thought that her life would be ‘turned upside down'” were her colleagues at work to “become aware of her status.”

In light of this, the court found the concerns expressed by the Department to be insufficient to reject Doe’s petition.  “NYSED does not suggest or indicate that petitioner has any record of disciplinary actions or professional misconduct associated with the prior license,” he wrote, “or that there is any deficiency with respect to petitioner’s past or present professional credentials.  This court must conclude that any potential harm to the public that NYSED proposes to prevent, is not a real issue with respect to the instant application.”

Clearly, the court would support the Department’s position if the petitioner were seeking to cover up or make inaccessible records of past disciplinary actions or professional misconduct, so the ruling was in response to the particular case, not a sweeping mandate that all such petitions be granted in the future.  Nonetheless, it marks a sensitive response to a difficult issue — much more sensitive than some cases noted in the past where, for example, educational institutions have balked at issuing new diplomas and transcripts reflecting the changed name and gender identity of their graduates.  In this connection, it is interesting to note a recent news story about the Pentagon recognizing the changed gender of a veteran for purposes of official service records.  Justice Walker’s opinion is further evidence of changing public attitudes towards acceptance and understanding of transgender individuals.