Five recent cases in the pronoun wars in education

Controversy abounds over the rights of instructional personnel who avoid referring to transgender students by names or pronouns inconsistent with their birth sexes because doing so would violate their First Amendment rights to freedom of religion and speech.

A recent law adopted in Colorado mandates that teachers use students’ preferred pronouns regardless of their own beliefs. And another in California bans educators from informing parents whose children wish to be referred to by names other than those associated with their birth sexes.

This column briefly highlights five recent cases involving pronoun use in educational settings and considers how those cases impact freedom of religion and speech.

Litigation

On August 12, 2024, in Geraghty v. Jackson Local School District Board of Education, a federal trial court in Ohio largely ruled in favor of a middle-school English teacher. Vivian Geraghty had resigned under pressure when her board required her to use the preferred names and pronouns of students “socially transitioning” genders, even though this would have violated her religious beliefs. Allowing the suit to proceed, the court explained that officials could not compel Geraghty to refer to students in a manner inconsistent with her faith because this was not part of her ordinary duties as it was not her job “to teach anything with regard to LGBTQ issues.” The court added that the board’s name and pronoun practice violated the teacher’s religious freedom rights by failing to meet the constitutional standard of being neutral and generally applicable.

Earlier, on July 8, 2024, a high school English teacher in Wisconsin, in Cernek v. Argyle School District, sued his board for various claims, most notably, violating his First Amendment right to the free exercise of religion in not renewing his contract. Ignoring the teacher’s religious objections, the board refused to reemploy him for not complying with its policy of using the preferred names and pronouns of transgender students.

The Supreme Court of Virginia’s December 2023 judgment in Vlaming v. West Point Board of Education upheld the religious freedom and speech rights of a popular, tenured high school French teacher. The board fired Peter Vlaming for insubordination over his unwillingness to call a biological female “transitioning” to male by the student’s preferred male pronouns. Reversing earlier orders in favor of the board, the court decided that it violated the teacher’s rights to free speech and due process.

Moreover, the court reinstated Vlaming’s claim that officials violated his right to the free exercise of religion, reasoning they could not compel him to speak in a way inconsistent with his beliefs. On September 30, 2024, the board agreed to pay the teacher $575,000 in damages and attorney fees, remove his firing from his employment history, and change its policies to be meet Virginia’s new education standards safeguarding parental rights to direct the upbringing of their children.

In July 2023, in Kluge v. Brownsburg Community School Corporation, the Seventh Circuit vacated its original opinion upholding a judgment in favor of the board wherein a high school music-orchestra teacher in Indiana resigned rather than have it terminate his contract because he referred to students by their last names rather than their preferred pronouns due to his religious objections to transgenderism. The court found that the board violated John Kluge’s rights by reversing its original willingness to accommodate his beliefs by using students’ last names in directing him to use pronouns in a way inconsistent with his beliefs.

Previously, in March 2021, in Meriweather v. Hartop, the Sixth Circuit ruled in favor of a philosophy professor in Ohio in a controversy over pronouns. Reversing an earlier order in favor of campus administrators, the court reasoned that they violated the Christian faculty member’s right to academic freedom in sending him a written reprimand claiming he failed to comply with university policies requiring instructors to address transgender students by their preferred pronouns.

Impact

Taking a broader view, these cases on pronoun use represent the latest skirmishes in the continuing culture wars. Those with “my way or the highway” mentalities demand absolute compliance with their unyielding wills as they demonstrate their obliviousness to the twin First Amendment rights of religious and free speech rights of educators. In sum, these disagreements boil down to a clash over beliefs and values. It thus remains to be seen whose values will prevail, those of believers defending their faiths, not letting themselves be compelled to communicate messages inconsistent with their values, or those of activist officials seeking to trammel the religion and speech rights of educators with whom they disagree.

Of course, all students deserve respect, but is it just for officials to compel people of faith to ignore their constitutionally protected beliefs in obligating them to use students’ preferred pronouns?

What do educational officials hope to accomplish as they seek to compel educators to ignore their religious and speech rights by using pronouns inconsistent with their faiths? It is unclear why administrators are so inflexible in demanding that educators forfeit their rights, preventing them from living out their faiths freely. In fact, as evidence of their unwillingness to compromise in Vlaming, Kluge, and Meriweather, officials stridently refused, for example, to allow educators to use last names rather than refer to students via pronouns.

These activists masquerading as educational officials won’t acknowledge that instructional personnel, whether in K-12 schools or higher education, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Consequently, educators cannot be forced to speak in ways violating their religious beliefs. At the same time, the litigation reflects how these pronoun activists miss the (apparently unintended)irony of their behavior, as they lack the very tolerance they expect from others when faced with views different from their own.

Illustrating the importance of the fundamental constitutional rights in play in these disputes, the Vlaming court pointed out that “[i]t would be alarming indeed to think that in the Commonwealth of Virginia, a religious person needs a constitutional right merely to hold a silent belief or opinion that does not change a thing he does or does not do.” This observation should serve as a reminder for educational officials to respect the diversity of perspective of teaching personnel, including on religion, rather than insisting on rigid conformity with the politically correct flavors of the day, as long as they perform their duties well.

At this point, it is unclear where the apparent judicial consensus emerging in Vlaming, Kluge, and Meriweather leads, while waiting to see how Geraghty and Cernek play out. Hopefully, legislative responses addressing pronoun use will ensure educators’ freedom of religion and speech by not forcing them to violate their deeply held beliefs.