Va. Supreme Court upholds reinstatement of Christian teacher who opposed trans pronoun policy

Byron Tanner Cross, a physical education teacher at Leesburg Elementary School, speaking before a meeting of the Loudon County School Board of Loudon, Virginia on Tuesday, May 25, 2021.
Byron Tanner Cross, a physical education teacher at Leesburg Elementary School, speaking before a meeting of the Loudon County School Board of Loudon, Virginia on Tuesday, May 25, 2021. | Screengrab: Vimeo/LCPS Board Meetings

The highest court in Virginia has rejected a request by the Loudoun County School Board to allow the suspension of a Christian teacher punished for criticizing a proposed policy requiring teachers to use trans students' preferred names and pronouns to take effect.

In an order issued Monday, the Virginia Supreme Court granted an appeal to review the merits of a lower court decision in favor of elementary school teacher Byron Tanner Cross and agreed to keep an injunction reinstating the teacher in place. 

Cross, a physical education teacher at Leesburg Elementary School for the past eight years, recently sued the Loudoun County School Board for suspending him after speaking out in his personal capacity at a May board meeting against a proposed policy.

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Policy 8040, which was enacted earlier this month, requires teachers to use the preferred pronouns of trans-identified students. In his speech before the school board, Cross cited his Christian faith and said he could not "lie" to students. 

“Looking to federal precedent as persuasive, it is settled law that the government may not take adverse employment actions against its employees in reprisal for their exercising their right to speak on matters of public concern,” reads the order in part.

“Because the remaining interests the Defendants raise do not override Cross’ and other teachers’ interests in exercising their constitutionally protected right to speak on the proposed transgender policy, the circuit court did not abuse its discretion.”

The Alliance Defending Freedom, a conservative legal nonprofit helping to represent Cross, celebrated the Virginia high court order. The organization also suing on behalf of other teachers to get the policy struck down.

“Teachers shouldn’t be forced to promote ideologies that are harmful to their students and that they believe are false, nor should they be silenced for commenting at a public meeting,”  ADF Senior Counsel Tyson Langhofer said in a statement released Monday.

“[B]ecause Loudoun County Public Schools is now requiring all teachers and students to deny truths about what it means to be male and female and compelling them to call students by their chosen pronouns or face punishment, we have moved to amend our lawsuit to challenge that policy on behalf of multiple faculty members.”

Cross was placed on administrative leave after expressing opposition to Policy 8040 during the May school board meeting, although he did so in his personal capacity. 

“My name is Tanner Cross, and I am speaking out of love for those who suffer with gender dysphoria,” he said at the meeting. “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," he added.

The school board claimed that following Cross' comments, parents and students "expressed fear, hurt and disappointment about coming to school." Contending that the suspension was the appropriate response, the school district argued in court that Cross is unlikely to succeed on his free speech claim because his comments created disruption at Leesburg Elementary. 

In June, Judge James E. Plowman of the 20th Judicial Circuit of Virginia granted Cross' request for a temporary injunction.

Plowman wrote that putting Cross on leave was “extreme” and “an unconstitutional action” since the teacher’s words, even if controversial, were nevertheless “permissible.”

“The Court agrees with Plaintiff’s analysis and concludes that Defendants’ actions to suspend the Plaintiff, as well as the additional restrictions placed upon him, adversely affected his constitutionally protected speech,” wrote Plowman.

The school board appealed the decision, arguing in a statement that the words of Cross were harmful to trans-identified students.

“LCPS respectfully disagrees with the Circuit Court’s decision to issue the injunction, and it is appealing this ruling to the Supreme Court of Virginia,” stated the school district.

“Many students and parents at Leesburg Elementary have expressed fear, hurt and disappointment about coming to school. Addressing those concerns is paramount to the school division’s goal to provide a safe, welcoming and affirming learning environment for all students.”

The Cross legal complaint was later amended when the school district passed the proposed policy in August by a vote of 7-2. Multiple teachers want to have the new policy struck down. 

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