The Virginia Supreme Court this week reaffirmed a lower court’s decision requiring Loudoun County Public Schools to reinstate a teacher whom Loudoun had suspended for refusing to use transgender students’ pronouns.
An earlier version of this article incorrectly said Alliance Defending Freedom expected a circuit court judge to rule on two of its requests this week. The alliance expects a decision this week on whether two teachers can be added to the lawsuit, but the timing of a ruling on a request to halt enforcement of the school system’s policies on transgender students is unclear. The article has been corrected.
Cross sued, alleging that Loudoun had violated his right to free speech and the free exercise of religion as granted under the Virginia Constitution.
In June, Loudoun County Circuit Court Judge James E. Plowman ruled that the school district must reinstate Cross as the teacher’s lawsuit proceeds. Plowman called Loudoun’s punishment of Cross “unconstitutional” because it “silenced others from speaking publicly” on the issue of transgender rights. Loudoun appealed the decision to the state’s high court.
On Monday, the Virginia Supreme Court asserted that Plowman’s decision must stand. The justices wrote in a 14-page court order that Loudoun had failed to prove that “the circuit court abused its discretion.”
The justices also signaled that they are broadly sympathetic to Cross’s suit.
“Cross was opposing a policy that might burden his freedoms of expression and religion by requiring him to speak and interact with students in a way that affirms gender transition,” the justices wrote. “Although the [Loudoun school] Board may have considered Cross’ speech to be ‘a trifling and annoying instance of individual distasteful abuse of a privilege,’ we believe Cross has a strong claim to the view that his public dissent implicates ‘fundamental societal values’ deeply embedded in our Constitutional Republic.”
Loudoun schools spokesman Wayde Byard declined to comment Tuesday because it is school policy not to discuss pending litigation.
Cross is being represented by the Alliance Defending Freedom, a conservative legal advocacy group that has a history of getting involved in lawsuits that question the rights of transgender people. In a statement on Cross’s behalf, Alliance attorney Tyson Langhofer hailed the state Supreme Court’s ruling as both vindication and victory.
“Teachers shouldn’t be forced to promote ideologies that are harmful to their students and that they believe are false,” Langhofer said. “Nor should they be silenced for commenting at a public meeting.”
Following the state Supreme Court’s ruling, Cross will continue to work as a physical education teacher in Loudoun as his lawsuit proceeds through county circuit court, according to Langhofer.
Despite the ongoing lawsuit, the Loudoun school board in mid-August approved a new policy that allows transgender students access to school facilities and activities that match their gender identities — and that requires employees to address transgender children by their names and pronouns. Loudoun adopted the guidelines in obedience to a Virginia law, passed in 2020, that requires school districts statewide to update their rules for the treatment of transgender students to help guard against harassment.
Lawyers for the alliance have asked the circuit court to halt enforcement of Loudoun’s transgender policy while the lawsuit makes its way through the legal system.
Cross’s attorneys also recently filed a motion asking to add teachers Monica Gill and Kimberly Wright as plaintiffs in the lawsuit. Like Cross, Gill and Wright argue that they should not be required to address transgender students by their pronouns because doing so goes against the teachers’ core beliefs.
The alliance expects to receive a decision later this week on whether the teachers can be added to the complaint.
In Monday’s court order, the justices wrote that they found one of the Loudoun school district’s main stated reasons for suspending Cross — that the teacher’s comments about transgender rights were disrupting typical school operations — unconvincing.
The justices wrote that Loudoun never produced any real evidence that Cross’s continuation as a physical education teacher would “harm children.” Nor was there sufficient parent outrage to justify Cross’s suspension, the justices concluded.
“A tiny minority of parents requested that Cross not interact with their children,” the justices wrote. “However, the Defendants [Loudoun County Public Schools] identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’.”
On Tuesday, leaders of LGBTQ rights groups in neighboring Fairfax County called on school and elected officials in that county to speak out against the high court’s ruling, saying it lent support to the idea that “teachers have the right to publicly declare their intent to deadname and misgender their students,” according to a news release from FCPS Pride, the Pride Liberation Project and GLSEN Northern Virginia.
“A ruling like this rolls back the clock at a time when trans students need our support,” said David Aponte, chair of the Northern Virginia chapter of GLSEN.