The Virginia Supreme Court heard arguments Friday in a case involving a former West Point High School French teacher who was terminated in November 2018 after repeatedly refusing to refer to a student by the pronouns he uses.
The Alliance Defending Freedom, which has been deemed an anti-LGBTQ+ hate group by the Southern Poverty Law Center, represented Peter Vlaming in court and stated in opening arguments that compelling Vlaming to use the student’s pronouns violated his right to free speech.
“The school defendants fired Mr. Vlaming not for something he said or for something he did, but for something that he couldn't say,” said ADF attorney Christopher Schandevel.
In a legal brief, Vlaming’s attorneys wrote that he could not affirmatively express his personal agreement with the student’s choice to identify as male because of his sincerely held religious and philosophical beliefs that each person’s sex is biologically fixed and cannot be changed.
“There was no intentional misgendering of the student within the classroom. There was the one accidental use during a hallway exercise, but the school defendants made clear that's not what they were firing him for,” Schandevel said Friday in court. “They were firing him for not affirmatively using biologically incorrect pronouns, which his conscience did not allow him to do.”
Schandevel said Vlaming was more than willing to avoid the use of pronouns altogether, “so as not to offend or hurt the student, and to just use a student's preferred name. That wasn't good enough for the school defendants. They wanted to compel him to speak a message that violated his religious beliefs, and that's where the constitutional violation occurred.”
Alan Schoenfeld, who argued on behalf of the West Point School Board, said Vlaming “resolutely, repeatedly refused to comply with a non-discrimination policy,” which he said is why Vlaming was terminated.
In its legal brief, the school board detailed repeated warnings from West Point High School’s principal and the district’s superintendent about Vlaming’s violation of the district’s nondiscrimination policies, as well as multiple requests from the student and the student’s parents. Eventually, one of the student’s parents requested that he be withdrawn from Vlaming’s class.
“The critical point is that when a teacher is in the classroom — in front of students who are required to be there, delivering the school board's curriculum — this is the molten core of when a public teacher’s religious belief does not exempt him from compliance with school non-discrimination policy,” Schoenfeld said.
Additionally, Schoenfeld said that even the Commonwealth of Virginia recognized the student as male.
“He underwent a gender transition, his name has been legally changed, the marker on his birth certificate has been changed,” Schoenfeld said. “I think Mr. Vlaming’s suggestion that he can disagree with that conclusion on the basis of his free-speech or free-exercise rights goes too far in the constitutional analysis.”
Jack Preis, a law professor at the University of Richmond, pointed out that the only reason Vlaming knew the student was transgender was because they’d been in his other French classes before transitioning.
“But imagine that a student starts ninth grade, presents in a way that a teacher thinks the student might be trans. But the teacher doesn't really know for sure. Nowadays, if the student has fixed their birth certificate, it will read with their gender,” Preis said. “At that point, it's hard for me to see that the teacher would have any basis to use the pronoun of their choice, except simply through suspicion that this person doesn't look feminine enough or masculine enough.”
At one point in the arguments Friday, the case was described as “constitutional rights on a collision course.” Preis said the teacher’s free speech and freedom of religion rights are up against the student’s right to freedom from discrimination. He said historically, students’ rights have generally won out.
“That's because — using the language that arises in these cases — the state has a compelling interest in avoiding discrimination in schools,” Preis said. “And that compelling interest can't be addressed or can't be achieved any other way except by prohibiting the discrimination itself.”
But Preis said that while the law strongly favors the student, there are legal arguments to be made in favor of Vlaming, too. He noted that the state attorney general’s office issued a legal brief in support of Vlaming, which focused on Virginia’s long history of upholding religious rights.
“It does seem to boil down to, generally speaking, the degree to which we expect teachers to fall in line with school district policy. And that's a pretty broad way to put the issue,” Preis said. “But generally speaking, if the school district decides this is an important part of teaching children, then do we force teachers to fall in line with that, even if they have sincerely held religious beliefs or free speech beliefs otherwise? Or do we instead sort of provide some degree of accommodation for dissent?”
It’s unclear when the court will issue an opinion in this case; Preis said opinions in many other cases have been published after about three months — but he said this case could take longer.
