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Court considers whether school district can suspend teacher for opposing transgender proposal

Federal appeals court recently banned university from punishing professor for refusing to use transgender student's preferred pronouns.

Updated: June 5, 2021 - 2:59pm

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A Virginia circuit court heard arguments late Friday on whether a school district can suspend a teacher for publicly opposing a proposal to require school employees to address transgender students by their "chosen" names and pronouns.

The injunction hearing was held just three days after Byron Tanner Cross, who goes by his middle name, sued the Loudoun County School Board to reverse his suspension and possible termination for speaking at its May 25 public meeting.

The suit alleges content- and viewpoint-based retaliation against the gym teacher for accepting the board's invitation to the public to comment, "on his own time in his personal capacity," on two draft policies related to gender identity.

Policy 8040 would require school staff to address "gender-expansive or transgender" students how they wish, "without any substantiating evidence," and ignore what's in their educational record. Staff must use the names and pronouns corresponding with their gender identity upon request from students or parents.

While "inadvertent slips" in using the wrong names and pronouns are not punishable, staff who "intentionally and persistently refuse to refuse to respect" students' choices can be punished.

The draft would reinterpret Policy 8350 on student activities, such as sports, to allow "gender-expansive and transgender students to participate in such activities in a manner consistent with the student’s gender identity."

In a marathon three-hour hearing, the court asked the parties what level of "disruption" justifies suspending a teacher for his speech and whether the district would knowingly hire employees who share Cross's religious beliefs if they violate school policy, among other questions. (Just the News tuned in for half the hearing.)

The court didn't issue the preliminary injunction sought by Cross from the bench, but said it would make a decision by close of business Monday, according to the Alliance Defending Freedom, which is representing Cross.

60 Minutes report on detransitioners should give board pause

Cross told the May 25 public meeting he was "speaking out of love for those who suffer with gender dysphoria." He cited a recent 60 minutes episode that profiled formerly transgender young people who "detransitioned" due to feeling "led astray because of lack of pushback or [told] how easy it was to make physical changes to their bodies in just three months."

The draft policies would "damage children [and] defile the holy image of God. I love all of my students but I will never lie to them" that biological boys can become girls and vice versa, "regardless of the consequences," he said. "It's lying to a child, it's abuse to a child, and it's sinning against our God."

The district suspended Cross with pay May 27 to investigate alleged "conduct that has had a disruptive impact" on Leesburg Elementary School. It banned him from school grounds and school-sponsored activities without prior permission, which his suit claims banned Cross from future school board public meetings.

A district spokesperson told NPR he couldn't disclose the reason for Cross's suspension but said the proposed changes would align the district with state guidelines for the treatment of transgender students.

The next day, the teacher's lawyers at the Alliance Defending Freedom threatened to sue the district for unconstitutionally suspending Cross, "who has always received exemplary evaluations," in retaliation for his speech. The suit notes his contract was renewed for next year right before he was suspended.

The law firm pointed to its track record of Supreme Court victories and a recent federal appeals court victory that overturned a public university's punishment of a professor for refusing to address a transgender student by female pronouns.

Immediately suspending and investigating an employee for "expression in his private capacity on a matter of public concern" - gender identity in schools - "creates an atmosphere of fear" and intentionally sends a message to other employees that "they must toe the line or face the consequences," the warning letter said.

His lawyers questioned the official rationale by the district in a Tuesday motion for a temporary restraining order and preliminary injunction. 

The district told them that his "comments" at the board meeting provoked "significant disruption" at the school because some parents asked that Cross have "no contact with their children." This is not a logical claim, given that he "performed all his normal duties" without incident at school the next day, the motion says.

"The core of constitutional liberty in a free society - and ability to comment on public policy under consideration without fear of retaliation - is at stake in this case," the motion says. The district aims to force teachers like Cross to violate their religious beliefs by affirming "with their own mouths" highly disputable claims about gender.

The district's lawyer argued Friday that the school didn't punish Cross for his beliefs but acted in response to several warnings from parents that they didn't want their children in the teacher's class, given his public comments. This created a disruption that justified removing him pending investigation.

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