Parsing the Pronoun Wars
Charles J. Russo July/August 2024A state court resists an all-or-nothing approach.
Controversy continues in courts across the nation over pronoun use for transgender students in public schools. It’s a controversy that state legislatures are increasingly engaged with as well. In April, for instance, Colorado adopted a law—which is certainly likely to be challenged—requiring teachers to use students’ preferred pronouns regardless of their own ethical or religious beliefs.
A recent decision by the Supreme Court of Virginia, though, suggests a potential way forward in dealing with what has become a hot-button cultural and political issue. In Vlaming v. West Point Board of Education, decided December 14, 2023, the court upheld freedom of religion, conscience, and speech. Relying on Virginia law, the court reinstated the claims of a high school teacher, Peter Vlaming, who was fired because he was unwilling to call a biological female known as John Doe, who was transitioning to male, by the student’s preferred male pronouns.
A Zero-Sum Attitude
Vlaming, a popular sixth-year French teacher at West Point High School, about 35 miles east of Richmond, consistently earned positive evaluations resulting in his achieving continuing contract, or tenured, status. However, conflict arose early in the fall of 2018 when Vlaming learned that Doe wanted to be identified by masculine pronouns. To avoid violating his faith while accommodating, and not offending, Doe, Vlaming used the masculine French name he assigned Doe in class in lieu of a pronoun. To limit the risk of Doe feeling singled out, Vlaming also rarely, if ever, used third-person pronouns to refer to any students during class or while the student being referred to was present. Outside of Doe’s presence Vlaming referred to Doe using pronouns aligned with Doe’s biological sex.
When Doe complained, administrators trammeled Vlaming’s religious rights, charging him with insubordination for noncompliance with their written directive to use the student’s preferred pronouns. On December 6, 2018—a few weeks after school officials suspended Vlaming—the school board voted 5-0 to fire him, ignoring an outpouring of support from students and parents for the teacher.
When Vlaming sued the school board and administrators, most notably for violating his free exercise, free speech, and due process rights under Virginia’s constitution and statutes, a trial court in Virginia dismissed his claims as meritless.
On appeal, reversing in favor of Vlaming, the state’s high court found that “in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the ‘natural and unalienable rights of mankind.’ ”
Rejecting the board’s argument that Vlaming forfeited his free exercise rights at work, the high court declared that Virginia’s constitution “seeks to protect diversity of thought, diversity of speech, diversity of religion, and diversity of opinion.” The court specified that “absent a truly compelling reason for doing so, no government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs.”
Continuing on, the court explained that “it is a ‘cardinal constitutional command’ that government coercion, even when indirect, cannot constitutionally compel individuals to ‘mouth support’ for religious, political, or ideological views that they do not believe.” The court added that “compelling an educator’s ‘speech or silence’ on such a divisive issue would cast ‘a pall of orthodoxy over the classroom’ on a topic that has ‘produced a passionate political and social debate.’ ”
The court pointed out that because Vlaming’s “free-speech claims involve an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims.” Consistent with 2023’s 303 Creative v. Elenis, wherein the Supreme Court ruled that a Christian wedding website designer in Colorado could not be compelled to offer her services to a same-sex couple, the Virginia panel observed that the board could not require Vlaming to speak in a way offensive to his conscience.
Emphasizing that Vlaming’s dismissal violated his due process rights under Virginia’s constitution, the court commented that “no clearly established law—whether constitutional, statutory, or regulatory—put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination. . . . If the government truly means to compel speech, the compulsion must be clear and direct.” Moreover, the court noted that the board breached Vlaming’s contract in firing him for asserting his rights to free exercise, free speech, and the Virgiania’s Religious Freedom Restoration Act (VRFRA).
All seven members of the court agreed to reinstate Vlaming’s free exercise claims.
Growing Judicial Consensus
Earlier in 2023, in Kluge v. Brownsburg Community School Corporation, the Seventh Circuit vacated its original opinion upholding the dismissal of a teacher in Indiana who referred to students by their last names, rather than their preferred pronouns, because of his religious beliefs objecting to transgenderism. The court relied on 2023 Supreme Court precedent from Groff v. DeJoy, requiring the U.S. Postal Service to accommodate an employee by granting him time off for worship on Sundays. In its brief 130-word opinion the court found that the board violated the teacher’s rights by failing to accommodate his religious beliefs.
Previously, in 2021, in Meriwether v. Hartop, the Sixth Circuit upheld the right of a faculty member in Ohio to not violate his religious beliefs by using pronouns with which he disagreed. Reversing an earlier order in their favor, the court reasoned that officials transgressed a Christian faculty member’s right to academic freedom in sending him a written reprimand over his alleged noncompliance with university policies mandating that instructional staff address transgender students by their preferred pronouns reflecting their asserted gender identities. Viewed synoptically, Vlaming, Meriwether, and Kluge agreed that directing educators to use pronouns inconsistent with their faiths violated their constitutional rights.
Case Reflections
Amid emerging judicial consensus, hopefully legislative responses will address pronoun use respecting freedom of religion, conscience, and speech. Doe and others who are transgender certainly have the right to live as they wish. Even so, advocates cannot ignore the twin freedoms of religion and speech by seeking to compel others to communicate using words with which they disagree, especially if their objections are faith-based. The key is for all to respect the diversity of opinion of which the Vlaming court wrote instead of demanding rigid conformity to one viewpoint.
Whether Vlaming is a game-changer remains to be seen because, having been resolved under Virginia law, it is unlikely to impact federal precedent. Still, Vlaming can be a trendsetter if people of good will on both sides of this challenging issue take the court’s rationale to heart by demonstrating respect for freedom of religion and speech, bedrocks of our constitutional system, along with mutual tolerance for differences of opinion.
Article Author: Charles J. Russo
Charles J. Russo, M.Div., J.D., Ed.D., is the Joseph Panzer chair in education in the School of Education and Health Sciences, director of its Ph.D. program in educational leadership, and research professor of law in the School of Law at the University of Dayton. He can be reached at crusso1@udayton.edu.