Court Finds No Compelling State Interest in Forcing Teacher to Use Student’s Masculine Pronouns

Takeaway: The Supreme Court of Virginia, considering claims predicated on the state constitution, clearly expressed its dissatisfaction with U.S. Supreme Court jurisprudence holding that a neutral law of general applicability doesn’t violate the free exercise clause of the First Amendment even when the law incidentally burdens religious views, speech or practices. The court stated that this position continues to be controversial and has never been the law in Virginia, which offers greater protections for religious speech. School boards and other governmental entities should be aware that state constitutions and laws may be more protective of an individual’s exercise of religious free speech than the U.S. Constitution.

The Supreme Court of Virginia, finding that the government had no compelling state interest in insisting that a teacher use masculine pronouns in referring to a transgender student, rather than simply using the student’s chosen name, reversed a lower court’s dismissal of the teacher’s free exercise and free speech claims.

The plaintiff is a public high school French teacher who was employed by a Virginia school board for six years, consistently receiving positive evaluations. Near the end of the 2017-2018 school year, he learned that one of his students, who was assigned female at birth, intended to transition to a male gender identity.

When the teacher became aware that the student wanted to be called by a more culturally masculine name rather than culturally feminine names—both the student’s given name and chosen French name—he asked the entire class to choose new French names for the semester so that the student would not be the only one changing names.

Later in the fall semester, the teacher was informed that the student wanted to be referred to by masculine pronouns also. The teacher “holds religious and philosophical convictions that reject the idea that gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans and instead accept as a verity that sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires,” the court said. For this reason, he said he could not in good conscience “use pronouns that express an objectively untrue ideological message.”

The teacher used the student’s new names, both French and English, and avoided using third-person pronouns when referring to the student. To limit the risk of the student feeling singled out, the teacher also rarely, if ever, used third-person pronouns to refer to any students in class.

In a meeting with the assistant principal, the teacher explained that his “conscience and religious practice prohibited him from intentionally lying by referring to a female as a male.” The assistant principal responded that he “should be aware of the law” and gave him two documents prepared by the National Center for Transgender Equality. She also said the teacher’s “personal religious beliefs end at the school door” to the extent that they conflict with school board policy and that he “should use male pronouns or his job could be at risk.” The principal repeated this warning one week later.

During a virtual reality exercise in his classroom soon after, the teacher became concerned that the student was about to walk into a wall and exclaimed to the student’s partner in the exercise, “Don’t let her hit the wall!” Although the teacher apologized to the student for using a feminine pronoun, the student withdrew from his class that day.

The teacher reported the incident to the principal, who said he should have expressly apologized to the student for not using a masculine pronoun. The principal recommended placing the teacher on administrative leave. In response to a reprimand and final warning letter, the teacher told the superintendent he would continue to use the student’s chosen name but could not use masculine pronouns to refer to the student due to his religious beliefs.

The superintendent then gave the teacher a written directive ordering him to use masculine pronouns to refer to the student and warned that noncompliance would result in termination. When the teacher responded that he could not in good conscience use masculine pronouns when referring to the student, the superintendent recommended his termination to the school board. The school board voted to terminate his employment.

The teacher filed a complaint in state court asserting free exercise, free speech, due process and breach of contract claims related to his termination. The court dismissed the case on a review of the pleadings, and the teacher appealed.

Free Exercise Claims Found Sufficient

The Supreme Court of Virginia began its analysis by noting that the plaintiff based his free exercise claim exclusively on Article I, Section 16 of the Constitution of Virginia, which states that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience. No man ... shall otherwise suffer on account of his religious opinions or belief.” Further, it states that “all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in no wise diminish, enlarge or affect their civil capacities.”

The court pointed out differences between the religion clauses of the First Amendment of the U.S. Constitution and the free exercise provisions of the Virginia Constitution, emphasizing that “interpretations of the former do not necessarily govern the construction of the latter.” For instance, the U.S. Supreme Court in Employment Division v. Smith held that a neutral law of general applicability does not violate the free exercise clause of the First Amendment, even when the law incidentally burdens religious views, speech or practices. This would indicate “that the government has no obligation to accommodate sincerely held religious beliefs if it is enforcing a law or policy that passes the neutrality and general applicability tests,” the court said. The court disputed this position, saying that “the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” The court cited the 1786 Virginia Statute for Religious Freedom, which provides that civil government may interfere with an individual’s sincerely held religious principles only when these “principles break out into overt acts against peace and good order.”

The court, assuming as true each of the plaintiff’s factual allegations, said his requested accommodation was straightforward: to honor his religious convictions, he would use the student’s chosen name and avoid using any third-person pronouns. The school board rejected this accommodation and compelled the plaintiff “to use government-approved pronouns” instead of using only the student’s chosen name, the court said.

“The issue here is not whether the school board’s policies forbidding discrimination and harassment of students applied—as the school board asserts—or did not apply—as [the plaintiff] asserts—to the compelled speech situation alleged in the complaint. The issue is whether [the plaintiff’s] sincerely held religious beliefs caused him to commit overt acts that invariably posed some substantial threat to public safety, peace or order … and if so, whether the government’s compelling state interest in protecting the public from that threat, when examined under the rigors of strict scrutiny, could be satisfied by less restrictive means,” the court said. “When religious liberty merges with free speech protections, as it does in this case, mere objectionable and hurtful religious speech or, as in this case, nonspeech is not enough to meet this standard.” The court held that the plaintiff had alleged a legally viable claim under Article 1 of the state constitution.

Further, the court found the allegations sufficient to state a statutory free exercise claim under the Virginia Religious Freedom Restoration Act (VRFRA), which states that “no government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.” A narrow exception adds that a violation of the general rule will be excused only if the government can demonstrate that application of the burden to the person is essential to further a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest.

However, the plaintiff’s core allegation is that he was fired for referring to a student assigned female at birth only by the student’s desired masculine name, instead of by both that name and government-mandated masculine pronouns. He alleged that he could not comply with this compelled speech mandate because it coerced him into violating his conscience by endorsing an ideology at odds with his sincerely held religious beliefs, thus asserting a prima facia claim of a statutory violation of VRFRA, the court concluded.

Free Speech, Due Process Rights May Have Been Violated

Turning to the plaintiff’s free speech claims under the state constitution, the court observed his complaint did not allege he was fired for saying something he should not have said, but rather for not saying something that his religion and conscience forbade him from saying. The masculine pronouns ordered by the school had nothing to do with any curricular topic related to the French language, the court noted. “The concept of ‘gender identity’ is among many ‘controversial subjects’ that are rightly perceived as ‘sensitive political topics,’ ” the court said. “[T]he government has no inherent power to declare … that controversial ideas are now uncontroversial.” Finding that the complaint stated legally viable claims that the plaintiff was fired in violation of the state constitution, the court held the circuit court had erred in dismissing his free speech claims.

The court also upheld the plaintiff’s allegations that the school board fired him in violation of the state constitution, which states that “no person shall be deprived of his life, liberty, or property without due process of law.” The two written school board policies cited did not mention the use or nonuse of pronouns nor mandate the use of only government-approved pronouns for transgender students, the court noted. The circuit court erred in accepting the school board’s argument that the plaintiff should have known that Title IX standards enforced by these policies clearly required him to use pronouns in addition to names when referring to transgender students, the court concluded, holding that the complaint stated a legally viable claim under the due process clause of the Virginia Constitution.

Noting that it had found the plaintiff’s free exercise and free speech claims to be legally viable, the court said it follows that he has also alleged a valid breach of contract claim. The court reversed the circuit court’s dismissal order and remanded the case for further proceedings.

Vlaming v. West Point School Board, Supreme Court of Virginia, No. 211061 (Dec. 14, 2023).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.