Judge troubled that snowboarding coach fired day after discussing sex differences: lawyer

Can a school employee discuss the practical ramifications of the biological differences between the sexes without committing harassment against students who identify as the opposite sex?

A federal court considered the question at a hearing Monday in which former snowboarding coach David Bloch is seeking a preliminary injunction against the Vermont Agency of Education, Vermont Principals' Association and Windsor Central Supervisory Union Board.

Bloch is seeking reinstatement to his $4,439-per-season job at Woodstock Union High School after he was fired, with three weeks left in the season, for his impromptu conversation with team members who were discussing a transgender athlete on another team at their competition.

"This case isn’t about the real harms bullying and sexual harassment pose in schools" or whether sex or gender identity should determine sports participation. It's about "preserving dialogue on an issue of paramount public importance" rather than submitting to the "orthodoxy" of the district, Bloch's lawyers at the Alliance Defending Freedom said in a Sept. 14 filing. 

The filing also emphasizes that Windsor Central Superintendent Sherry Sousa and the district "have submitted no evidence to defend their termination decision, preferring surprise to presenting their case."

U.S. District Judge Christina Reiss, nominated by President Obama, expressed concern at the hearing that the district fired Bloch just a day after he explained physiological advantages of males in athletic competition to two team members, before he could defend himself with witnesses or present evidence, ADF legal counsel Matthew Hoffman told Just the News.

Hoffman also said he expects the judge to rule on the proposed injunction in the next several weeks.

The district waited until the hearing to give Bloch a copy of the investigative report that Sousa promised him seven months earlier, which he also requested "repeatedly," Hoffman said. ADF filed the report as an exhibit Monday but it's not yet available in the court system and ADF didn't answer a request for it.

Lawyers for the defendants did not respond to Just the News queries for their take on Monday's hearing.

The allegations by Bloch, who says his contract has been "automatically renewed" each year since he founded the program at WUHS in 2011, resemble a drastically abbreviated version of the ordeal recently recounted by former Oberlin College women's lacrosse coach Kim Russell.

She says she endured a series of disciplinary meetings, a two-hour "struggle session" and a formal warning in Russell's human resources file after she asked Instagram followers how they felt about the claim that Emma Weyant was the "real winner" of an NCAA women's swimming competition with biologically male Lia Thomas in 2022.

Rather than fire its coach of five years and risk more legal troubles on top of its $36 million judgment for defaming a local bakery, Oberlin recently reassigned Russell to a newly created position of "employee wellness project manager" that does not interact with students, she told Fox News this month. She previously refused to rule out litigation, citing a "hostile working environment."

Oberlin justified the reassignment to Inside Higher Ed by claiming Russell had violated her players' trust because she secretly recorded one of the disciplinary meetings where players were present, which is legal in Ohio. The Independent Women's Forum aired excerpts of both students and administrators scolding Russell.

Bloch's suit alleges he intervened in his players' conversation during "downtime" at the Feb. 8 competition because a female team member called a male team member "transphobic" for objecting to males competing against females due to their biological differences. 

While recognizing the phenomenon of "masculine women and feminine men," Bloch told them that DNA gives males "different physical characteristics" that "generally" give them athletic competitive advantages. The conversation lasted three minutes, "entirely outside the presence of the transgender-identifying snowboarder," whom Bloch never mentioned, the suit says.

The male student testified at Monday's hearing that Bloch just "offered his opinion on an important matter," in Hoffman's paraphrase. The witness list identifies the student as Jonas Wysocki, who is also named on the team roster.

The Vermont Standard said the transgender opponent's identity was "known in the community" and confirmed the student was a member of the Hartford High School snowboarding team, whose social media confirms it was at the Feb. 8 competition with WUHS. 

A day after the competition, Superintendent Sousa gave Bloch a notice of "immediate termination" that also banned him from coaching jobs elsewhere in the district. He likely would have been an attractive candidate, with the program "consistently" earning "top three placements statewide" and producing "at least three individual state champions."

Prompted by a complaint to the high school's athletic director, Jack Boymer, that Bloch had used "disparaging terms" about an opposing team's player, the district quickly determined that Bloch's contribution to his players' dispute violated two policies, according to the notice, which is attached to the suit.

By allegedly confirming to Boymer that he "made reference" to the athlete "in a manner that questioned the legitimacy and appropriateness of the student competing on the girls' team," Bloch violated the district harassment policy, which prohibits verbal conduct based on gender identity that creates an "objectively offensive environment," the notice states.

It does not acknowledge Bloch's claim that the transgender student was neither named nor present, and does not elaborate on how he also violated the Principals' Association athletic policy.

Sousa admitted the investigation was ongoing and she "did not have all the details of Coach Bloch's speech," the suit states.

Testifying at Monday's hearing, Sousa herself confirmed a claim made "upon information and belief" in Bloch's lawsuit, that she has a child who identifies as the opposite sex, Hoffman told Just the News. He said Sousa claimed this did not "bias" her treatment of Bloch and that Judge Reiss didn't remark upon it.

The district and Sousa opposed the motion for preliminary injunction in a Sept. 1 filing, saying Bloch was unlikely to prevail on the merits because his intervention in the players' dispute was "part-and-parcel of his coaching duties," depriving his speech of constitutional protection.

They distinguished the case from the Supreme Court's ruling in favor of a Washington football coach who prayed on the field after games, and from cases where a school employee writes an editorial or speaks at a school board meeting. There is "no civilian analogue" for a coach's access to players during a competition, they argue.

The filing confirms the district fired Bloch without evidence that he mentioned the transgender opponent. They "expect to elicit testimony at the hearing" that Bloch's comments "were specific" to and "intend[ed] to denigrate the player" so as to "rile up the team for the competition."

Heather Bouchey, interim secretary of education, filed a motion Wednesday to seal the hearing transcript so it can be scrubbed of the "names of and personal information regarding several non-party students, presumed to be minors," who were mentioned in the hearing. 

The district and Sousa also filed a motion to dismiss Bloch's "facial challenges" to the constitutionality of the district's harassment policies, which they said were based "nearly verbatim" on the model policy by Bouchey's office.

The policies cannot be guilty of "content- and viewpoint-discrimination" because their purpose is to regulate the "secondary effects" of employees' speech "on the school environment," they say, in this case "the denial of equal access to schools on the basis of membership in a protected category."

They won't offer a detailed factual rebuttal at this stage. But "suffice it to say" the district and Sousa "disagree" with Bloch's version of events, according to their motion to dismiss.