“A Matter Of Public Concern”: Virginia Judge Orders Reinstatement of Teacher Who Criticized Gender Policy

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We recently discussed the case of Loudoun County teacher Byron “Tanner” Cross who was suspended for speaking against gender policies. In a major victory for the free speech rights of teachers, Twelfth Circuit Judge James E. Plowman ordered LCPS to restore Cross’ position as a physical education teacher at Leesburg Elementary School. In a letter, the court found a basis for a temporary injunction to allow Cross to return until Dec. 31 pending further orders of the court.

Cross ran into trouble when he appeared at a meeting of the school board. He 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.”

 

Cross was making reference to a “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 described how they were harmed by the transitioning procedures and felt that little was done to protect them.

Cross’ statement appeared to refuse to comply with 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.”

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.

However, now Cross appears likely to prevail as a teacher. The ruling in his favor required a finding that he was likely to prevail in seeking the injunctive relief.

The county notably stressed that the basis for the suspension was the disruption caused by Cross’ comments.  That was a major blunder by the county and its counsel. Notably, the school district did not find that the national controversy surrounding the remarks of another teacher presented similar disruption. Loudoun County teacher Andrea Weiskopf called for book bans and attacked those supporting classics like To Kill A Mocking Bird as advocating harmful “White Saviorism.”

 

It would have been wiser to focus on a refusal to comply with school policy, though it would need to confirm with Cross that he would do so. Accordingly, “[T]he Court has found … that the disruption relied upon was insufficient.” Plowman further found that  Cross’ “interest in expressing his First Amendment speech outweigh the Defendant’s interest in restricting the same and the level of disruption that Defendant asserts did not serve to meaningfully disrupt the operations or services of Leesburg Elementary School.”

The Court also noted that at least five teachers submitted declarations that they would like to speak publicly but are afraid to do so because of the retaliation against Cross.  By focusing on the likely “disruption” caused by Cross’ views, the county undermined its position by focusing on the content of his views. The suspension occurred within 24 hours of his remarks, so there was little time to establish his position on carrying out his duties in light of the policy. The court distinguished between the “expectations” and the “mandate” of the policy.  It found that Cross may not satisfy the expectations but still not violate the policy. Thus, the suspension was viewed as premature and the evidence insufficient.

That is a remarkable win for a teacher in the current environment. There has been growing pressure to monitor and sanction teachers for public comments. Last year, Winthrop University Professor, April Mustian threatened K-12 teachers that they are being watched for any “rhetoric” deemed pro-police or anti-Black. We previously discussed the Vermont principal who was removed for  expressing her opinion of Black Lives Matter on her personal Facebook page. We also recently discussed the firing of a Michigan coach who expressed support for President Trump. However, this did not begin with the recent protests.  We have previously seen teachers (herehereherehereherehereherehereherehereherehere, here) students (herehere and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).

The school could appeal but it would be wise to reframe its position before it reenters litigation. Better yet, it could work out a compromise to protect free speech rights. As I discussed earlier, 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.

80 thoughts on ““A Matter Of Public Concern”: Virginia Judge Orders Reinstatement of Teacher Who Criticized Gender Policy”

  1. I recall watching an interview with Jordan Peterson a while ago. He was talking about the cognitive development of toddlers. Very small children do not yet understand that everyone around them have their own feelings, perceptions, and ideas entirely separate from that child’s. Gradually, they begin to notice feedback on how their behavior is perceived and received by others.

    The trans movement has gone beyond wanting to dress and behave as they wish. They demand to control how everyone else perceives and refers to them. But that’s not how cognition works. A woman may try to dress in a flattering manner, use makeup techniques, and style her hair in an attempt to look younger, yet she has absolutely no control over how anyone else will see or refer to her. Some people are going to say she’s not dressing her age, or that all the pancake makeup is settling into her lines, or doesn’t match her décolletage.

    Everyone is free to form their own opinions.

    Biologically, XX = female, XY = male, and then here is the occurrence of sex chromosomal disorders. People can behave and perform how they like, but nothing is going to change that biological truth. Those who use the standard biological or religious definition of male and female are not going to be moved by the strong arm, hostile tactics of the far Left.

  2. If we’re going to put up with this nonsense then why don’t we adopt Ebonics as our official language.

  3. In cases like this the judge should have the power to revoke the citizenship of those doing the firing.

  4. So, it boils down to who has the ultimate say, at school, as to what pronoun or name a student is referred to. And….despite Turley’s breathless defense of this ignoramus teacher, the grounds for his causing this ruckus and violating school policy really wasn’t First Amendment: it was his religion. That was the basis for his deciding he knows better and has a superior right to determine the gender identity of a student. So, based on his religious belief that the appearance of one’s genitals determines their gender, regardless of their self-identity, he gets away with magnifying the suffering of this student. And, to boot, he violated school policy. And, he calls himself an educator. He is forcing his religious beliefs on a student at a public school. How can that be constitutional?

    Another thing, Turley, we all know that your overarching assignment is to keep the disciples stirred up so that they’ll rush to the polls and vote Republican to “save” their culture, it is truly disingenuous of you to refer to someone prevailing on a preliminary injunction as winning some sort of major victory. A preliminary injunction is just that: preliminary. All of the evidence is not in or developed yet.

    1. This particular teacher is refusing to go along with children’s gender identity wishes because of his religion, but the reason many refuse to comply with inaccurate or made-up pronouns is because the idea of gender identity is not rooted in science. There is no scientific basis for “born in the wrong body,” nor is it scientifically accurate that babies are “assigned a sex at birth,” with children choosing at a later date whether they are boys or girls. That schools and the government in general are bending over backwards to perpetuate inaccuracies such as “born in the wrong body,” “boy’s brain in a girl’s body,” etc. is a scandal. Not only are these messages inaccurate and pseudoscientific, it is dangerous, sexist and regressive to teach kids that what determines whether they are boys or girls are the clothes, toys, hairstyles and activities they prefer, and that they need to see a doctor if they possess the “wrong” likes and dislikes for the sex they were born. In the UK, the government is wising up to the dangers of teaching gender pseudoscience to children. Their Department for Education has issued teacher guidance stating teachers may not tell children that they might be a different gender based on their personality or the clothes they want to wear, and that they must not suggest to children that it’s possible to be born in the wrong body, because this line of thinking is misleading, regressive and potentially very harmful. It’s time for the USA to wake up, too. I fear any waking up is a long way away, and in the meantime countless children will be needlessly medically altered because they don’t adhere to outdated stereotypes.

      1. Yes, the normal gender (i.e. masculine and feminine) spectrum, and, separately, the fringe transgender spectrum. Whether Mengele or Cecile clinics, surgical, medical, psychiatric, and abortive Choices, a religious imperative, a liberal obsession, a progressive path and grade.

      2. No one can tell a transexual what gender they are. They know it, and whether their bodies and self-identities match is not a matter of science–it is something that a transexual knows. We don’t know in the future what neuroscience will show that could scientifically validate a transexual’s gender identity, but I’ve seen and read enough and have known two transexuals, so there is little to no doubt that it’s not a passing fancy, a bid for attention, or anything other than wanting to live the life they are meant to live, without judgment or condemnation over something they didn’t choose. One of these people I knew died by suicide. It is theorized that it could be due to some hormonal aberration during embryonic development that causes a switch in external genitalia, but which does not affect the brain. Anyway, how does it harm a child to honor their choice of pronouns, manner of dress and choice of name? Why is it anyone else’s business, and where does anyone get off trying to force their religious beliefs on others? And, BTW: gender confirmation surgery is not usually done until well after puberty and after extensive psychological counseling. Another BTW: the scientific community acknowledges the validity of gender dysmorphia.

        1. 99.9% are not claiming to be transgender. Of those left, no stranger would know if they dont make a show of it.
          Its called gender dysphoria for a reason. I don’t give a whit about how others perceive themselves. I d roesent being told I must be a joyous participant in someone else’s mental anguish. I offer empathy, not partnership.

    2. Living in a land of make believe should never be forced on the intelligent population. No fn new pronouns. The ones around are accurate. Making shit up for a minutia of the population is ridiculous. Dysphoria is the problem. Get psychiatric help and quick.

  5. There’s a simple solution. There are only 18 pronouns to remember. The teacher has a list of say 30 students in his class. After each students name is the pronoun or pronouns by which he or she wishes to be referred. The teacher must be very careful not to mix up what pronouns go with what student. One slip up might cause a depression of one or more of his students. Recordings of all classes must be made to monitor the teachers compliance. If the teacher does not comply a hearing will take place and the recordings together with the testimony of the offended students will be offered to prove his guilt. When he is found guilty he will be dismissed from his teaching duties. At the discretion of the board this explanation of the rules may be expanded to insure that justice will prevail. All in agreement raise your fist. The fists have it.

    1. At minimum, there are 18 plausible pronouns and their permutations over the transgender spectrum. A Pro-Choice religious imperative, judgments and retribution, too many labels, and progressive collateral damage.

    2. Keep pronouns as is. Catering to sick people is agreeing with them and more stupid. If it swings it’s a he. She, if it doesn’t.

  6. The Court ruled on the Pro-Choice religious indulgence of genderphobia and nominally secular policies that are selective, opportunistic, and politically congruent in accommodation of divergent progressions.

  7. Article VI of the U.S. Constitution also governs public schools and local governments. Article VI outlaws public school teachers [government official] from imposing their religious interpretation onto students [private citizens]. Section 3 of Article VI outlaws any religious test for any government official – including teachers.

    The U.S. Supreme Court has the final word on “constitutionality” legal boundaries in regards to Sections 2-3 of Article VI (or any other clauses). At the school board meeting the teacher very clearly stated that his position was based on his religious interpretation. That is illegal according to the Supreme Court’s past rulings on constitutionality. Students may have legal standing for a constitutional lawsuit against the teacher and school.

    1. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

      I would discuss in good faith, but not with a person that is forced to lie.
      A person that is paid by tax $’s is not an Officer, or hold an office of “public trust” or elected official, they are simply an employee of the govt. If the guy worked for the city water utility would he be in violation of the Constitution is he made the exact same statements?

      You are going to have to quote all those SCOTUS decisions that forbid teachers from holding religious opinions.

      You may want to venture over to Dearborne Michigan and start suing the public schools there. Lots of accommodations are in place for the Muslim population

    2. Ashcroft, we’re did you find any mention that the teacher has discussed anything in his classroom relevant to his religious beliefs. With your logic it would be permissible to compel you to display a cross on your desk if you are an atheist. You would demand your right to not be religious and you would be correct in doing so. You offer no such charity to others whose beliefs are not pleasing in your mind. Thankfully you were not sitting on the bench.

  8. The First Amendment also outlaws “theocracy” – a government official IMPOSING one’s religious interpretations onto citizens. If this is a public school, he is a “governing-entity” with authority over students. He violated the First Amendment rights of students, then wanted the very same First Amendment to protect his rights. Imagine a student feeling intimidated into supporting his viewpoint in order to get fair treatment by a public school official.

    The First Amendment protects both “religious freedom” and “freedom from religion”. Theocracy – imposing one’s religious interpretation, using taxpayer dollars, is not protected. From a non-government perspective, many of his fellow Christians disagree with his interpretation. Using that same measuring stick, school officials could also preach against optional-war and against the death penalty – also prohibited on religious grounds.

    1. The First Amendment also outlaws “theocracy” – a government official IMPOSING one’s religious interpretations onto citizens.

      No it says “congress shall make no law”. by your magical interpretation of the 14th amendment you have turned a private citizen outside of a classroom setting, into the equal of Congress.
      The man explaining his motivation is NOT establishing a religion.
      As a teacher I can stand before my class and advocate that all the kids in the room should listen to their parents, and respect their perspective. That’s a universal position. That it happens to be 5th Commandment does not bar the message, or messenger from the classroom

      1. re: iowan2

        The teacher stated that his religion came first so maybe he should work for a church. In his job duties and job authorities, he specifically mentioned his religious interpretation at a school board meeting.

        Nothing bans the teacher from attending church on non-school time or donating to religious causes. Teachers can’t indoctrinate students on school time. Students are in a compromising relationship with adult teachers imposing their religion at work.

        1. That’s you opinion. It lacks factual support. You are advocating banning any person that lives their faith, from public education. With the decline of educational quality, a fraction of its former self, sadly you might be getting exactly what you want…good and hard.

          Teachers can’t indoctrinate students on school time.
          You call advocating respect for parents, religious indoctrination?

          Me thinks you are blinded by your prejudice.

          1. re: iowan2

            If you read the teachers own comments in the above article, that’s not what he said. There are different interpretations within Christianity itself. Generally speaking some Christians focus onlyon the Bible’s text (not always consistent with Jesus’ actual words and deeds) and some follow what Jesus actually did say and do. Jesus embraced outcasts and unpopular people – that’s a credible Christian view.

            The First Amendment’s religious clause was created primarily because European Christians in the 1700’s (and earlier) were persecuting other Christians. For example: Baptists were being persecuted by the Church of England for having a different interpretation of Christianity. That is just the Christian Protestant side, every religion that practices theocracy does it.

            Using that same measuring stick, other equal sins would include supporting optional-war and supporting the death penalty. Some Christians view these things as equal sins.

            Nobody in America is prevented from attending church on non-work time and non-work authority. The USA has the greatest religious freedom in the world because of the First Amendment.

            1. AZ, I don’t understand. Is your underlying complaint against the teacher for what he said in class or before the board?

            2. The First Amendment’s religious clause was created primarily because European Christians in the 1700’s (and earlier) were persecuting other Christians.
              Thats bunk.

              The founders did not want a replay of the” Church of England” Which elevated clergy to a level of elected officials.

            3. If you read the teachers own comments in the above article, that’s not what he said.

              I never made the claim the teacher used my example in the class room. It was an example of common everyday truths that happen to be supported by religious teachings. He believes gender is defined by science and supported by his religious teaching.

    2. Yes, no philosophies and practices dictated by God, gods, or mortal gods and goddesses. No religions, no behavioral protocols under moral (i.e. universal), ethical (i.e. relativistic), or legal (i.e. politically congruent) standards. No death penalties, especially planned parent/hood for social progress, social justice, and other selective, opportunistic light and casual (e.g. inconvenience, profit) causes. A separation of Progressive Church, Synagogue, Temple, chamber, agency, corporation, clinic, etc. and State. That said, take a knee, beg, throw another baby… fetus (to socially distance technicians and abortionists) on the barbie for good measure.

    3. The state is attempting to impose a view on its staff that contravenes many people’s religious or otherwise-arrived-at beliefs. It is not just asking the teacher to tolerate the views of other teachers and students but to adopt them through speech. There is no evidence that he is imposting Christian theology on his students or asking them to adopt his views. This would be like a school telling a muslim teacher that they need to verbally confirm that god does not exist in order to appease the feelings and self-respect of non-believing students, or an atheist teacher being compelled to mouth along with the Lord’s Prayer at the start of class.

      If the school wants to compel the teacher to treat students kindly and with respect, that can be accomplished in many ways without compelling him to speak something that he does not believe, and that he fears with some evidence would make him party to harming some students who would go on to detransition. As Turley points out, the school could recognize his right to refer to students by their last name without being fired.

  9. Off topic. Bitcoins:. Is there a physical coin, a Bitcoin, behind every computer traded Bitcoin? Is a physical Bitcoin worth anything by way of gold or silver? What do the “mine” in those Bitcoin mines talked about in the media
    It all seems like BS to me. And real bulls will in fact poop.

  10. In much the same way we view frontal lobotomies, future generations will look back on the chemical and surgical mutilation of young children in abject horror. It time we hold those responsible — including the school administrators and school board members — accountable as accomplices to child abuse.

  11. I believe the teacher’s freedom of speech transcends the school board’s (imbecilic, in my opinion) policy about the issue of gender. And I also believe every member of that school board deserves to retain the right to be offended.

  12. Hooray for the good guys!
    Makes me proud of my Ol’ Virginny ancestral roots (1600’s)
    Here’s to lots more rulings by. honest, fair judges, like this.

  13. @JT. You keep saying that a student would have a better case on free speech grounds than a teacher. I don’t understand this. Compelled speech is compelled speech no matter who the government is compelling to use “state approved” speech.

  14. I’m so old I remember when absolutely none of this stuff came up in school. Parents led the discussing of these subjects and if you went to church or Temple you sort of got a bit more that dealt with the moral and social aspects of things of this nature. Might be a good thing to go back to reading, writing and arithmetic and try again to see if the old way still might work peacefully.

          1. Cindy,

            Yes that anony was me, sorry I’ve been having to clean off spam from online advertising & failed to reset my user name here again.

            Checking out for now.

        1. “A good interview to Alex Jones” is oxymoronic in the extreme. Jones consciously lied, saying murdered school children were NOT murdered, mentally torturing the parents of the deceased children. Thank God the parents of the deceased children won their law suit against Jones. After the court convicted Jones he played the victim card and said he had a mental disease that caused him to lie; the real cause is his personality defect of greed: the bigger and fatter his lies the more money he earns. .

          1. From what I see/hear from you/yours, I think it says that you & your friend’s own comments are seen on it’s face you people are nothing less then complete frauds!

    1. parents have abdicated their power to the credentialed educrats. School boards have been ignored and taken over by those hand picked by the teachers unions. I don’t know how to get the power back, other than going home school or private.

      1. If ordinary people, known in their communities or willing to knock on a lot of doors, ran for the school board, that would help.

        Not all communities are overrun by the teachers unions.

        1. Prairie Rose
          I shared your view when my youngest entered 1st grade. I visited all the public School Board meeting for more than a year. What I learned is the administration runs everything. The board is kept very busy doing committee work that reaches pre determined outcomes, or ‘researching’ some action under consideration and presenting what they find. I cant prove it, but I think there is a long list of ideas for Board Busy Work to keep them away from exercise any actual reform.
          It starts with Accounting. Something that is in no way akin to actual accounting. It is almost impossible for someone with accounting knowledge to understand. Things like curriculum is off limits. I offered to buy an American History text book. Approved in all 50 states, but never got any consideration.

          School Board are figurines, tangible, but useless

        1. You get power back by confronting the corrupt. In finance, it’s called an audit.

          I am not making a claim of financial fraud. My guess is, it all fine in the end. But it is impossible for smart experienced persons to look a the books and determine how the money is being spent. It is a, one-of, type of system. For a reason. To keep the public in dark and prevent them from asking pointed questions.

  15. Great. Now we have courts ruling that a teacher has a legal right to insult and disparage their students. I hope his students show him the same lack of respect he pledged to show his students.

    1. Molly:

      Yeah ain’t that a beeeatch that a teacher gets his First Amendment right to call a boy a boy and a girl a girl. Toughen up buttercup. It’s a harsh world out there to be called what you truly are – your mental disorder (gender dysphoria)notwithstanding. lol

      1. If the teacher wants to call who he decides as “boys” and “girls” then they should be able to call him “a piece of shit” because they believe that he objectively is. Also teachers do not have 1A rights to insult students and defy school mandated polices about respecting students.

    2. Can the student demand the teacher refer to them as Child of God?
      How about Master?
      I wish I were 16, I can think of all sorts of hoops to make stupid teachers jump through. Make them dance to my tune.

      1. One smart-aleck student a few year back entered his preferred pronouns as Supreme King of the Universe / Your Majesty. I never did hear how that turned out, but bless his heart.

    3. Molly……..When good things happen to good people, it’s almost too much for you and the rest of Buffoon Nation to comprehend.
      Quel dommage. (that’s French for deal with it)

      1. This is not a good thing to happen to a good person. This is a bad thing to happen to his students who will now be the object of his abuse.

  16. Yet, this is “when using a name or pronounce (sic) to address the student.”

    When addressing a student, wouldn’t one use second person pronouns (you, you, your, yourself)? These are gender-free.

    Do they teach English at this school?

        1. “Crazy people easily adopt craziness.”

          …as S. Meyer likes to demonstrate in his many nutty comments to this blog.

          1. I’m not afraid of having a name and a distinct icon. You are. That tells us you are a bit meshugana.

            1. “I’m not afraid of having a name and a distinct icon.”

              A faulty conclusion drawn @ 7:40 PM…., which tells us that the person who drew that erroneous conclusion is more than a bit stupid.

              1. Anonymous the Stupid, I note you called my comment a “faulty conclusion”, but you left out the proof. Anyone reading the blog can see you are wrong.

      1. The diverse labels and judgments, one and all, as idealized by the transgender spectrum celebrated with gay pride under a Rainbow banner of inclusive exclusion is a Pro-Choice religious imperative. #HateLovesAbortion

    1. Unlikely. Grammar is old-fashioned, dontcha know. The kids will just pick it up naturally as they read and write. Least wise, that was the argument I heard from an Ed. Dept prof. Egad.

      Also, I don’t think grammar is on standardized tests, so why bother teaching it, right. Egad again.

      1. Prairie Rose, the grammar on testing isn’t much more than punctuation. They don’t even teach diagramming anymore. I taught my kid sentence diagramming this year, and it was the first he’d seen it.

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