We recently discussed a meeting of the Loudoun County school board in which a teacher launched into a diatribe against classic works like To Kill A Mockingbird as racist. Now another teacher is the focus of a national debate after he spoke to the school board. However, teacher Byron “Tanner” Cross has been suspended for speaking against gender policies.
At issue was Policy 8040, which requires Loudoun staff to use preferred pronouns.
“LCPS staff shall allow gender-expansive or transgender students to use their 18 chosen name and gender pronouns that reflect their gender identity without any substantiating evidence, regardless of the name and gender recorded in the student’s permanent educational record. School staff shall, at the request of a student or parent/legal guardian, when using a name or pronoun to address the student, use the name and pronoun that correspond to their gender identity.”
The line of tension is not in the first part of the policy in allowing students to use their chosen pronoun but requiring others to use them. That has triggered religious and political objections around the country.
Notably, the rule extends to other students who can be punished for failing to use the required pronouns:
“The use of gender-neutral pronouns are appropriate. Inadvertent slips in the use of names or pronouns may occur; however, staff or students who intentionally and persistently refuse to respect a student’s gender identity by using the wrong name and gender pronoun are in violation of this policy.”
The punishment of a student for failing to use the pronouns could create the most difficult constitutional challenges under the First Amendment. That could be deemed as compelled speech in contravention of their religious and political views.
Cross is an elementary school physical education teacher and appeared before the board to express the view of some parents that the policy forces people to be adopt speech that they reject on religious or political grounds. Cross was adamant and strident in his opposition in first expressing sympathy for those with gender dysphoria but also denouncing the policy.
He makes reference to a chilling “60 Minutes” program interviewing people who were diagnosed with gender dysphoria as young children and quickly put through gender changing procedures with little time or serious review. Those interviewed describes how they were harmed by the transitioning procedures and felt that little was done to protect them.
Cross began by stating “My name is Tanner Cross and I am speaking out of love for those who are suffering from gender dysphoria.” He goes on to reference that he is a teacher but would not follow the policies:
“It’s not my intention to hurt anyone, but there are certain truths that we must face when ready. We condemn school policies [that] would damage children, defile the holy image of God. I love all of my students but I will never lie to them regardless of the consequences. I’m a teacher but I serve God first and I will not affirm that a biological boy can be a girl and vice versa because it’s against my religion. It’s lying to a child, it’s abuse to a child, and it’s sinning against our God.”
Principal Shawn Lacey sent out an email to students stating:
“I’m contacting you to let you know that one of our physical education teachers, Tanner Cross, is on leave beginning this morning. In his absence, his duties will be covered by substitute staff already working in our building. I wanted you to know this because it may affect your student’s school routine. Because this involves a personnel matter, I can offer no further information.”
The action raises a difficult issue for free speech. First, as a parent and teacher, Cross has every right to state his opposition to the policy. There was not a call to fire Loudoun County teacher Andrea Weiskopf when she called for book bans and attacked those supporting classics like To Kill A Mocking Bird as advocating harmful “White Saviorism.”
However, Weiskopf did not say that she would not follow any contrary decision of the board. Cross appears to state that he will not comply with the gender policy. If Cross merely appeared at the meeting to oppose the policy, he would have an extremely strong constitutional case in opposing any suspension or termination. Instead, he appears to pledge that he will not comply as a teacher in the county.
There may be a little wriggle room. Cross specifically declares “I will not affirm that a biological boy can be a girl and vice versa because it’s against my religion.” It is not clear if that means that he would refuse to use a required pronoun. He could argue that he was saying that he would not expressly endorse the underlying conclusion on gender or the basis for the policy. However, it certainly sounded like he was saying that he would not comply with Policy 8040.
As noted above, the strongest challenge could be effort to sanction students who refuse to use such pronouns. Cross is a teacher who is expected to follow these policies and most courts would likely support the school in mandating such compliance. However, his case could force a challenge on the two opposing views. The school views this as supporting an anti-discrimination policy while the teacher views this as curtailing his free speech and religious rights.
The tragedy is that both sides clearly care deeply for students. Cross comes across as someone who genuinely loves his students, but holds religious views that others believe are harmful to some students.
There may be room for compromise. A court could ask if there is any “give” in this language. It could come down to the language allowing punishment of “staff or students who intentionally and persistently refuse to respect a student’s gender identity by using the wrong name and gender pronoun.”
The rule does state that “School staff shall, at the request of a student or parent/legal guardian, when using a name or pronoun to address the student, use the name and pronoun that correspond to their gender identity.” Yet, this is “when using a name or pronounce to address the student.” What if a teacher simply does not use a pronoun? If Cross refers to such students by their last name and avoids any pronoun, would that be considered compliance? If so, the board should clearly lay out such options in writing. Indeed, if Cross is fired, such questions could be soon before a court.