A Loudoun County, Virginia, Circuit Court judge will decide whether to immediately stop enforcement of the school system’s recent policy that requires teachers to use the preferred pronouns for transgender and gender-expansive students in the county’s schools.
Lawyers representing three Loudoun County teachers argued before Judge James Plowman that the new rule, titled Policy 8040, was government-compelled speech, which violated their client’s conscience and religious beliefs.
“Policy 8040 gives the Loudoun County Superintendent the power to silence and punish teachers because of their views about sex and gender. That’s illegal, and it discriminates against certain teachers based on their viewpoint,” said Tyson Langhofer, an attorney from the Alliance Defending Freedom representing the three educators.
Langhofer and other attorneys argued that Policy 8040 is also too subjective, and terms such as “gender-expansive” are too broad for an effective and clear policy easily followed by teachers. They contended that there were simply too many pronouns for teachers to learn and that the policy would allow students to change pronouns too frequently, which they said could lead to “mischief.”
During the proceeding, Judge Plowman commented that some pronouns on the school’s list were words he “did not recognize.”
Attorneys representing the Loudoun County School Board argued that the rule only applies to teachers in their official capacity as educators. They cited Garcetti v. Ceballos, a Supreme Court case that concluded government employees’ free speech is only protected as a private citizen and not if it is expressed as part of their official duties. They argued interactions with their transgender and gender-expansive students fell under the educators’ purview.
They also argued that the rule falls under “curricular speech,” and that personal beliefs should not interfere with the school’s curriculum. They cited examples of religious teachers objecting to the teaching of evolution to students.
The lawyers for LCPS also cited several studies that showed positive physical and mental health benefits for transgender and gender-expansive people when preferred names and pronouns were used.
While the plaintiffs object to the use of nonstandard pronouns, they said they would use preferred first names for any student.
The judge was also told by LCPS attorneys that a preliminary injunction wasn’t needed because no irreparable harm was being done to the three plaintiffs. Lawyers representing the teachers said deprivation of constitutionally protected speech was harm.
In the meantime, Monday also saw the announcement of a settlement over an elementary school teacher that spoke against the rule at a meeting.
The lawsuit was initially filed by Tanner Cross, a Leesburg Elementary School physical education teacher who was put on paid administrative leave after criticizing the then-proposed transgender policy in May. He was reinstated after a judge ruled the suspension as likely unconstitutional. School officials then appealed the judge’s ruling to the Virginia Supreme Court.
In August, they ruled that Cross’s constitutional right to free speech had been violated when he was penalized for what he said at a school board meeting.
On Monday, the court accepted a settlement: The Loudoun County School Board agreed to a permanent injunction prohibiting it from retaliating against Cross for expressing his views at that May board meeting. They would also pay $20,000 towards his legal fees, and the suspension would be erased from his personnel file.
“Teachers are just like everyone else. We have ideas views, we should be free to express in the court has vindicated those rights for me, and for all teachers. I can now confidently continue teaching at Leesburg Elementary School without fear of punishment for expressing my views,” Cross told reporters outside the courthouse.
Since the initial filing of Cross v. Loudoun County School Board, two more teachers, Monica Gill and Kimberly Wright, joined the suit. After the settlement, lawyers said the actual policy will remain the target of their litigation.
“Policy 8040 is based on ideology and not sound science. It threatens the well being of students and undermines school officials and teachers ability to serve in accordance with their beliefs,” Wright told reporters.
“There is an earnest debate right now about how best to serve and care for children who suffer and struggle with gender dysphoria. The Loudoun County School Board has chosen one side and not debate, they’ve mandated it, forcing all teachers to be complicit,” commented Gill.
Policy 8040 was passed by the Loudoun County School Board on Aug. 11.
The policy also allows transgender student athletes to participate on teams and to use bathroom and locker rooms based on their gender identity.
Loudoun County Public Schools declined to comment on the pending litigation.
Judge Plowman will now decide on the temporary restraining order and preliminary injunction to stop the enforcement of Policy 8040 before a trial.
He said the decision will likely come after Thanksgiving.
