After years of litigation over whether he had a viable claim, a Virginia teacher fired in 2018 for failing to follow his school’s transgender pronoun policy is going to get his day in court finally.
On December 14th, the Virginia Supreme Court revived Peter Vlaming’s 2019 lawsuit against the West Point School Board, sending it back to the trial court that rejected it.
The high court’s unanimous decision makes it clear to future parties that Virginia will “jealously guard” the religious liberties of plaintiffs like Vlaming.
Vlaming was a popular French teacher at the West Point High School for almost seven years when he was suspended in 2018. His dispute with the school began in the fall, after he learned that one of his female students had transitioned over the summer. In the new school year, she wanted to be called by a masculine name and pronouns.
But for Vlaming, a devout Christian, it was one thing to call the biological girl by a new name, and another—against his religious beliefs—to call her a “he” or refer to her as “him.” He describes walking a tightrope in the classroom: to accommodate his trans student’s wishes, he used her preferred name; to remain “true to his conscience” he refrained from using third-person pronouns altogether.
One day, though, he slipped. According to the complaint, an in-class exercise with students walking around the classroom while wearing virtual reality goggles went awry. The trans student was headed straight for the wall.
Seeing the accident about to happen, Vlaming says he blurted out to her partner: “Don’t let her hit the wall!”
Shame on him. Those were the “wrong” words, and he wasn’t supposed to say them. Immediately, Vlaming says, he “put his hands to his mouth” and apologized to the student after class for his excited utterance meant to protect her.
The school suspended him for failing to say the “right” words the next day. He should have apologized by saying, “‘I’m sorry, I meant to say him,’” the school principal later allegedly corrected him.
Vlaming says the school then warned him that refusing to say the student’s preferred pronouns violated its policy prohibiting discrimination and harassment based on gender identity. He could not do this as a matter of conviction, and it cost him his job. As the court later put it, Vlaming was fired “not because of what he said but because of what he refused to say.”
With legal representation by The Alliance Defending Freedom, Vlaming then sued the school for violating his rights under the Virginia Constitution and state law. The trial court rejected Vlaming’s case on these pleadings.
On appeal, Justice D. Arthur Kelsey, writing for the court, disagreed and reversed the lower court decision.
Because Vlaming’s constitutional claims arose under the Virginia Constitution, he was entitled to greater protection than he would have been afforded under the U.S. Constitution.
And so, when it reviewed the teacher’s free-exercise claim, the court relied on the “strict scrutiny” standard, rejecting the U.S. Supreme Court’s controversial holding in Employment Division v. Smith, under which “the government has no obligation to accommodate sincerely held religious beliefs if it is enforcing a law or policy” that is neutral or generally applicable. As far as the Virginia high court was concerned, “the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.”
Justice Kelsey wrote that the issue before the court was whether Vlaming’s sincerely held religious beliefs caused him to commit overt acts that “invariably posed some substantial threat to public safety, peace or order.” If so, it would apply strict scrutiny to determine whether the government’s compelling state interest in protecting the public from that threat could be satisfied by “less restrictive means.”
Under the strict scrutiny test, the court said, the trial court should not have rejected Vlaming’s claim, because “when religious liberty merges with free-speech protections,” “mere ‘objectionable’ and ‘hurtful’ religious speech, or”—as in Vlaming’s case, nonspeech—“is not enough to meet this standard.”
“The right to ‘exercise’ one’s religion,” the court said, “if it means anything, includes the right to speak or not speak and to act or not act based upon one’s religious sincerely held opinions or beliefs.”
The court held that the trial court was also wrong to reject Vlaming’s free-speech claims under Virginia’s Constitution. Teachers and students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Requiring Vlaming to use “government-mandated pronouns” in addition to his trans student’s preferred name amounted to a “compelled-speech mandate” that would force him to “speak in ways that align with [the government’s] views” in a manner that defies his “conscience about a matter of major significance” the court noted, referring to the recent U.S. Supreme Court’s recent opinion in 303 Creative LLCv. Elenis. Because Vlaming’s free-speech claims involve an allegation of compelled speech on an ideological subject—gender identity—the trial court should not have dismissed them.
Justice Kelsey wrote that the constitutional right to free speech “includes both the right to speak freely and the right to refrain from speaking at all.”
The court also rejected the argument that Vlaming should have known that his nonuse of the trans student’s preferred pronouns violated the Title IX anti-discrimination standards enforced by the school’s transgender policies. Those policies were silent on the “use or nonuse of pronouns,” the court said. “Nor did they mandate the use of only government-approved pronouns for transgender students.”
And at the time he was fired, “no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students”:
No appellate court, federal or state, has ever held, in the school context, that referring to a transgender student by preferred name and avoiding the use of any third-person pronouns to refer to the student is a severe, pervasive, and objectively offensive act of harassment under Title IX.
In fact, the only appellate court opinion directly addressing the issue has held the opposite, Justice Kelsey noted.
Vlaming’s claims are now headed straight back to the trial court that rejected them, under the scrutiny of a high court that has promised to afford Vlaming the “robust protection” of his religious liberties —liberties that have “no deeper roots than in Virginia, where they originated.”
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