“A Matter Of Public Concern”: Virginia Judge Orders Reinstatement Of Teacher Who Criticized Gender Policy

Authored by Jonathan Turley,

We recently discussed the case of Loudoun County teacher Byron “Tanner” Cross who was suspended for speaking against gender policies. In a major victory for the free speech rights of teachers, Twelfth Circuit Judge James E. Plowman ordered LCPS to restore Cross’ position as a physical education teacher at Leesburg Elementary School. In a letter, the court found a basis for a temporary injunction to allow Cross to return until Dec. 31 pending further orders of the court.

Cross ran into trouble when he appeared at a meeting of the school board.

He began by stating “My name is Tanner Cross and I am speaking out of love for those who are suffering from gender dysphoria.”

He goes on to reference that he is a teacher but would not follow the policies:

“It’s not my intention to hurt anyone, but there are certain truths that we must face when ready. We condemn school policies [that] would damage children, defile the holy image of God. I love all of my students but I will never lie to them regardless of the consequences. 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’s against my religion. It’s lying to a child, it’s abuse to a child, and it’s sinning against our God.”

Cross was making reference to a “60 Minutes” program interviewing people who were diagnosed with gender dysphoria as young children and quickly put through gender changing procedures with little time or serious review. Those interviewed described how they were harmed by the transitioning procedures and felt that little was done to protect them.

Cross’ statement appeared to refuse to comply with Policy 8040, which requires Loudoun staff to use preferred pronouns.

“LCPS staff shall allow gender-expansive or transgender students to use their 18 chosen name and gender pronouns that reflect their gender identity without any substantiating evidence, regardless of the name and gender recorded in the student’s permanent educational record. School staff shall, at the request of a student or parent/legal guardian, when using a name or pronoun to address the student, use the name and pronoun that correspond to their gender identity.”

Notably, the rule extends to other students who can be punished for failing to use the required pronouns:

“The use of gender-neutral pronouns are appropriate. Inadvertent slips in the use of names or pronouns may occur; however, staff or students who intentionally and persistently refuse to respect a student’s gender identity by using the wrong name and gender pronoun are in violation of this policy.”

The punishment of a student for failing to use the pronouns could create the most difficult constitutional challenges under the First Amendment. That could be deemed as compelled speech in contravention of their religious and political views.

However, now Cross appears likely to prevail as a teacher. The ruling in his favor required a finding that he was likely to prevail in seeking the injunctive relief.

The county notably stressed that the basis for the suspension was the disruption caused by Cross’ comments.  That was a major blunder by the county and its counsel.

Notably, the school district did not find that the national controversy surrounding the remarks of another teacher presented similar disruption.

Loudoun County teacher Andrea Weiskopf called for book bans and attacked those supporting classics like To Kill A Mocking Bird as advocating harmful “White Saviorism.”

It would have been wiser to focus on a refusal to comply with school policy, though it would need to confirm with Cross that he would do so. Accordingly, “[T]he Court has found … that the disruption relied upon was insufficient.” Plowman further found that  Cross’ “interest in expressing his First Amendment speech outweigh the Defendant’s interest in restricting the same and the level of disruption that Defendant asserts did not serve to meaningfully disrupt the operations or services of Leesburg Elementary School.”

The Court also noted that at least five teachers submitted declarations that they would like to speak publicly but are afraid to do so because of the retaliation against Cross.  By focusing on the likely “disruption” caused by Cross’ views, the county undermined its position by focusing on the content of his views. The suspension occurred within 24 hours of his remarks, so there was little time to establish his position on carrying out his duties in light of the policy. The court distinguished between the “expectations” and the “mandate” of the policy.  It found that Cross may not satisfy the expectations but still not violate the policy. Thus, the suspension was viewed as premature and the evidence insufficient.

That is a remarkable win for a teacher in the current environment. There has been growing pressure to monitor and sanction teachers for public comments. Last year, Winthrop University Professor, April Mustian threatened K-12 teachers that they are being watched for any “rhetoric” deemed pro-police or anti-Black. We previously discussed the Vermont principal who was removed for  expressing her opinion of Black Lives Matter on her personal Facebook page. We also recently discussed the firing of a Michigan coach who expressed support for President Trump. However, this did not begin with the recent protests.  We have previously seen teachers (here, here, here, here, here, here, here, here, here, here, here, here, here) students (here, here and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).

The school could appeal but it would be wise to reframe its position before it reenters litigation. Better yet, it could work out a compromise to protect free speech rights. As I discussed earlier, the rule does state that “School staff shall, at the request of a student or parent/legal guardian, when using a name or pronoun to address the student, use the name and pronoun that correspond to their gender identity.” Yet, this is “when using a name or pronounce to address the student.” What if a teacher simply does not use a pronoun?  If Cross refers to such students by their last name and avoids any pronoun, would that be considered compliance? If so, the board should clearly lay out such options in writing. Indeed, if Cross is fired, such questions could be soon before a court.