Judge bans school district from suspending teacher for opposing transgender pronoun mandates

"Governmental bodies being held in check for violating a citizen's constitutional rights, serves the public interest."

Updated: June 8, 2021 - 3:34pm

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A Virginia school district may not suspend a teacher for publicly opposing proposed transgender policies at a school board meeting, a state circuit court ruled Tuesday.

Judge James Plowman issued a temporary injunction against the Loudoun County School Board requiring it to reinstate Byron Tanner Cross, who goes by his middle name, as gym teacher at Leesburg Elementary School through the end of December.

The ruling followed a lengthy hearing Friday night that started with Plowman rejecting the district's argument that it was not properly served Cross's lawsuit. The parties went on to argue whether the district was justified suspending Cross with pay and banning him from district property, including future board meetings, for the "disruptive impact" caused by his one-minute comment.

He testified May 25 against policies that would require teachers to refer to "gender-expansive or transgender" students by their preferred names and pronouns and let these students participate on sports teams of the opposite sex, citing his religious beliefs and stories of students who had detransitioned.

Five families sent angry emails to the district May 26 demanding Cross be kept away from their children, and the school removed him from his scheduled "morning duty" of greeting children arriving at school that day.

Judge Plowman said it was clear Cross was speaking "as a citizen" outside his school position, off-hours, at the invitation of the school board, which asked for public comment on the proposed policies even while claiming they were required by state law.

His subject "can only be described as a 'matter of public concern,'" including because they referenced the very laws and policies the school board said it must follow, the order said. Plowman rejected the district's claim that the religious basis for Cross's comments made them an unprotected "private dispute."

The district didn't provide evidence for many of its claims about the alleged disruption caused by Cross's comments, the judge said. He noted that four of the five family emails to the district were sent "well after" Cross's scheduled morning duty, suggesting "no actual disruption" when Cross was reassigned to other duties.

In an elementary school of several hundred students, "the Court views the magnitude of parental complaints to be de minimis" and could not be cited to justify the district's actions.

Judge Plowman cited the district's ban on Cross from campus grounds and school board meetings, which could only be lifted by the "subjective determination of his supervisor," as "seemingly unnecessary" to his suspension.

He was not persuaded by the district's argument that it didn't target Cross's beliefs because it didn't take action against the teacher for an email to administrators and board members several days earlier, where Cross made similar but more detailed arguments against the proposed policies. The public reach of this email was "contained" and doesn't justify "blanket" immunity for its actions against his subsequent speech.

Cross's suspension and ban from district property "adversely affected his constitutionally protected speech" and was explicitly based on his comments at the school board meeting, which caused little disruption, the judge found.

The district also made a "misplaced" leap in assuming what Cross would do. It's possible to "not follow the expectations of the policy" while not violating its "mandates," the judge said, reiterating his comments at the hearing.

Cross is likely to succeed on the merits of his suit and will suffer irreparable harm from being punished for his speech, which has also chilled the speech of similarly situated employees, the order said.

Plowman cited the district's May 27 email to the community about Cross's suspension as "unnecessary and vindictive," given the school year was three weeks from ending. It could have taken actions less "extreme" given the late date in the school year.

"Affirming the unconstitutional action" against Cross, "which has silenced others from speaking publicly" about gender identity issues, "serves the public interest," the order said. "Governmental bodies being held in check for violating a citizen's constitutional rights, serves the public interest."

Parties must contact the court by June 16 to schedule a trial on the merits, Plowman said.

The Alliance Defending Freedom, which represents Cross, thanked the court for the order. "Dozens of other teachers have shared their beliefs on various policies without retaliation; Tanner deserves to be treated with the same respect," it said.

"Loudoun County Schools will have no comment," a district spokesperson told Just the News.

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