Virginia Supreme Court sides with fired teacher in pronoun dispute 

RICHMOND, Va. (CN) — The Supreme Court of Virginia issued a split opinion Thursday, with the majority siding with a French teacher who claimed he lost his job for not using a student’s preferred pronouns.

“Absent a truly compelling reason for doing so, no government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs,” Justice Arthur Kelsey wrote in the lengthy 73-page opinion.

Peter Vlaming taught high school French for six years at West Point High School in West Point, Va., with consistent positive evaluations, according to the opinion. Toward the end of the 2017-2018 school year, he learned that a former student of two of his classes was registering for another in the fall, this time with a preference to be called by a more culturally masculine name.

Labeled as John Doe in court documents, the student transitioned from female to male pronouns to reflect his gender identity in mid-October. Vlaming decided that not allowing pronouns in his classroom and instead referring to the students by their chosen French names would be a way to avoid insulting the student while maintaining his religious beliefs.

Vlaming met with Doe on Oct. 22, 2018, to explain that while using his preferred masculine French name, he would not refer to him by his preferred pronouns. In a phone call with Doe’s parents that evening, they told the teacher to leave his beliefs out and refer to their son as a male.

Assistant Principal Suzanne Aunspach met with Vlaming in the following days to inform him that his job was at risk if he did not use the student’s preferred pronouns.

Vlaming’s class participated in a lesson on Halloween involving virtual reality goggles. Doe, with goggles on, walked around the classroom until he neared a wall when Vlaming exclaimed to a nearby student, “Don’t let her hit the wall."

Despite Vlaming apologizing after class, Doe withdrew from his class. The principal sent Vlaming a final warning letter stating that he would be fired if he continued to violate the school board’s policy prohibiting harassment or retaliation against students and others based on gender identity.

Again, Vlaming asserted he could not refer to Doe by male pronouns in good conscience. Vlaming claims the school board fired him because he had refused to use masculine pronouns to refer to Doe and had refused to comply with directives from school administrators to do so.

Vlaming filed a complaint in local court against the West Point School Board, the principal, the assistant principal and the then-superintendent asserting free exercise, free speech, due process and breach of contract claims resulting from his termination.

Vlaming’s counsel from the Alliance Defending Freedom, a conservative Christian legal advocacy group, only sued on state law claims rather than federal law, claiming the termination violated the rights under the Virginia constitution’s guarantee of freedom of religion.

“Peter wasn’t fired for something he said; he was fired for something he couldn’t say,” ADF Senior Counsel Chris Schandevel said in a statement. The Virginia Supreme Court rightly agreed that Peter’s case against the school board for violating his rights under the Virginia Constitution and state law should proceed. As a teacher, Peter was passionate about the subject he taught, was well-liked by his students, and did his best to accommodate their needs and requests. But he couldn’t in good conscience speak messages that he doesn’t believe to be true, and no school board or government official can punish someone for that reason.

The school board defendants filed a joint demurrer to each of the claims in Vlaming’s complaint and a plea in bar to Vlaming’s free speech claims. The school board did not present any evidence to support the plea in bar. The King William County Circuit Court sustained the demurrer and the plea and dismissed the action.

The Supreme Court of Virginia granted an appeal in March of 2022 and heard oral arguments in November 2022. The majority concluded that Virginia’s constitution only allows for the restriction of beliefs — in this case, the school board’s policy regarding using preferred pronouns — if the beliefs cause overt acts that substantially threaten public safety, peace or order. Even if the act does pose those threats, the government must have a compelling interest in enforcing the policy.

“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,” Kelsey writes.

The dissenting justices agree with the majority’s judgment that the lower court should not have dismissed Vlaming’s legally viable free exercise claims under the Virginia Constitution, Virginia’s Freedom of Religion Act and common law contract claims and agree with the majority to reverse the circuit court’s dismissal order and remand the case for further proceedings in the circuit court.

The dissent, however, parts with the majority over its analysis and interpretation of the Virginia Constitution section governing the freedom of exercising religion.

“The issues before us today raise the most delicate human questions of religion, liberty, individualism, and the proper conception of these rights in a society which holds divergent views on the meaning of each,” Justice Thomas P. Mann wrote. “Today we have done little to harmonize this divergence. Now, Virginia stands alone among every jurisdiction in this country by imposing a new level of scrutiny; a super scrutiny for religious rights but no others."

Mann criticized the majority’s interpretation, fearing it could have broad implications.

“The majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either,” Mann wrote.

The case will return to the circuit court for further proceedings. Attorneys representing the school board did not return requests for comment.

As more students feel empowered to come out as transgender, more school districts are creating policies regarding pronouns. The dissent cited a 2020 survey conducted by the Centers for Disease Control revealing that 27% of transgender students surveyed felt unsafe at school, about 35% of transgender students were bullied at school and 35% had attempted suicide in the past 12 months.

“No doubt Doe will read or hear about the majority opinion and hopefully this partial concurrence and dissent as well,” Mann wrote. “He may observe that, except for the background section of the majority’s opinion, he is nearly invisible. But Doe cannot be left out of the equation, as his rights play a vital part in the correct analytical framework. That is as it should be."