Virginia Supreme Court Hears Arguments about Compelled Speech and “Preferred Pronouns”
This case update was written by a WoLF volunteer who attended the Nov. 4 hearing.
Background Information
On November 4, 2022, the parties in the case of Peter Vlaming v. West Point School Board took their arguments to the Virginia Supreme Court to determine whether Virginia public schools have the power to fire teachers who refuse to use incorrect sex-based “preferred pronouns” as demanded by school students. In May 2022, WoLF filed an amicus brief for this case, bringing our radical feminist arguments to the Virginia Supreme Court. This article provides an update about Peter Vlaming v. West Point School Board.
Mr. Vlaming sued the school board that formerly employed him, after his job as a high school French teacher was terminated because he had declined to use his speech affirmatively to address a female student using terms like “he” and “him” (or “il” and “lui”) during French lessons. According to school officials, Mr. Vlaming violated the anti-discrimination policy by avoiding pronouns altogether and simply addressing the students by French names of their choosing.
Mr. Vlaming argues that the school's action violated his rights in three significant ways: by depriving him of his right to free exercise of religion and religious expression under the Virginia state constitution; by violating Virginia’s Religious Freedom Restoration Act (RFRA); and by violating his right to free speech under the state constitution. According to Mr. Vlaming’s attorney, Chris Schandevel of Alliance Defending Freedom, all of these violations trace back to the school’s “preferred pronoun” policy which effectively compelled Mr. Vlaming to “personally endors[e] the school’s viewpoint on a controversial issue of public concern,” as part of his official duties as a public school teacher.
In addition to Mr. Vlaming’s lawsuit, Virginia has been at the center of a handful of public controversies concerning public schools and transgender ideology, with the most recent gubernatorial election highlighting deep divisions among voters on the topic of parental rights over school curriculum and policy. Under the direction of newly-elected Governor Youngkin, the state’s department of education has published a set of model policies that aim to support the rights and roles of parents while dealing with the growing number of students who claim some sort of transgender identity. Among other things, the order requires schools to seek parental approval for any changes to their children’s “names, nicknames, and/or pronouns,” and requires that student participation in activities and athletics be based on sex rather than self-declared “gender identity,” including student use of sex-separated bathrooms and locker rooms. In June 2021, WoLF submitted an open letter, co-authored by WDI USA, to the Loudon County Virginia School Board, explaining why single-sex spaces are essential for protecting female students. And in October 2021, WoLF educated readers about sexual violence committed by a male teenager against a female student in a Virginia school bathroom.
“Discrimination” or Ideological Conformity?
While Mr. Vlaming’s legal arguments center largely on his religious beliefs, WoLF’s goal in filing our brief was to ensure that the Supreme Court considers the many ways in which the consequences of this particular case will extend far beyond the realm of religion. We were therefore encouraged when some of the justices posed questions that indicated a fundamental skepticism of the notion that refusing to use “preferred pronouns” constitutes discrimination. One justice asked whether the school had even met its burden to show that any discriminatory behavior had occurred, given that Mr. Vlaming had never intentionally “misgendered” the girl, but had instead used first names and avoided using pronouns—the same as with all his students, regardless of their so-called “gender identity.” The school board’s response to that question revealed that its ideological scrutiny extended beyond Mr. Vlaming’s speech and into his subjective thoughts and intentions: “a teacher refusing to use pronouns. . . makes it obvious to everyone there exactly what he is doing. . . . We know because Mr. Vlaming slipped up at least once.” Yet, as the inquiring justice pointed out, Mr. Vlaming was not fired for a momentary one-time “slip up,” but rather because of his “resolute refusal to use preferred pronouns” in an affirmative manner. In other words, Mr. Vlaming’s refusal to use his own speech to affirm the beliefs of the school and the student was, according to the school, “discriminatory” and “exclusionary conduct.”
Another justice asked “why is [Mr. Vlaming’s] right not to lie more important than [the student’s] right to basic education and to not be discriminated against.” Perhaps unintentionally, this question revealed the justice’s understanding that the school board’s policy does effectively require Mr. Vlaming to lie about a student’s sex (while misrepresenting the teacher’s own sincerely-held beliefs), through the use of incorrect sex-based pronouns. An attorney participating in the case on behalf of the state of Virginia quickly disposed of that question by reminding the court that the school board had offered no evidence that the student’s ability to learn or participate in the classroom had been adversely affected by Mr. Vlaming’s use of names to address all students, rather than wrong-sex pronouns specific to one individual student.
On the other hand, the same justice voiced a concern that the school board’s policy and its arguments in court could “open[] the door to a whole bunch of [claims] under the guise of nondiscrimination statutes” that “enforce ideological conformity.” Again, the answer was revealing: Since the Commonwealth of Virginia has agreed to change the student’s name and sex designation on her birth certificate (effectively falsifying a vital record), according to the school board’s attorney, the teacher has lost his constitutional right to be free of compelled speech, and must instead use his own speech to affirm the state’s legal fiction. Confusingly, at the same time the school’s attorney insisted that simple “rationality” constrains what a school board can require a teacher to do, such that a school could not compel teachers to “teach information that everyone agrees is categorically wrong.” At this point the school board attorney descended into popular activist rhetoric, declaring that “transgender people exist, and they exist in the gender that they prefer and that they have transitioned into, and denying the existence of a student is precisely” what constitutes “discrimination” in a classroom.
Legal Tests and Procedural Questions
Much of the argument centered on more esoteric legal questions, such as which legal test the court should apply to cases like this one, where there is a conflict between the school’s obligation to “protect the rights of their students to be free of invidious discrimination” while simultaneously protecting “the rights of their employees and students to practice their religion.” (According to both Mr. Vlaming and the state, the specific provisions of the Virginia constitution require the court to apply strict scrutiny, meaning that any burden on free exercise of religion must be justified by a demonstration that the burden is “no more than absolutely necessary to vindicate a government interest of the highest importance.”) There is also a procedural question in play about whether the trial court committed an error by dismissing the case without a trial, in effect relieving the school board of its burden to provide factual evidence in support of its arguments. WoLF takes no position on these questions, but we agree that the school board has failed to demonstrate that a person’s decision to avoid pronouns for everyone somehow amounts to discrimination against students who assert a special gender identity.
Unsurprisingly, the school board’s attorney attempted to bolster his arguments by listing a string of federal cases in which students and employees have won discrimination claims on the basis of their self-declared “gender identities,” including the Supreme Court’s ruling in Bostock v. Clayton. However, Mr. Vlaming’s attorney brought the court back to the fundamental issues of the case in his closing arguments: “We believe that compelled pronoun usage is the compelled flag salute debate of our time. And just like with that… debate over compelled pledge of allegiance, regardless of whether or not some of the proponents of compelled pronoun usage might be well-intentioned, this is a badly misguided policy as a proposed solution for gender dysphoria, and is a flatly unconstitutional policy as a proposed solution for quiet respectful dissent.”
WoLF agrees.
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