The ACLU of Virginia joined the ACLU in filing an amicus curiae, or friend of the court, brief before the Supreme Court of Virginia in the case of Vlaming v. West Point School Board, arguing that public schoolteacher Peter Vlaming does not have an unfettered right to exercise free speech in the classroom when doing so results in discrimination against transgender students.
Peter Vlaming, a public schoolteacher, in defiance of the school’s directive that transgender students be addressed by the pronouns consistent with the student’s gender identity, refused to address a transgender student in his classroom by his preferred pronouns. As a result, the school dismissed Vlaming. Mr. Vlaming challenged the dismissal, arguing that being forced to use the student’s pronouns violated his free speech and free exercise rights under the Virginia Constitution.
The amicus brief argues the Circuit Court’s dismissal of Mr. Vlaming’s claims was appropriate based on three main points. First, Mr. Vlaming’s refusal to address a transgender male student with pronouns consistent with the student’s gender identity subjected him to harmful and unequal treatment. Vlaming’s actions singled out the student and opened him to ridicule and harassment by fellow classmates. A study conducted by the 2015 U.S. Transgender Survey (USTS) showed that 77% of transgender students reported harassment by students, teachers, or staff. Additionally, studies have documented that respecting transgender students’ names and pronouns was associated with a 56 percent decrease in suicide attempt. The school district had a compelling interest in protecting the wellbeing of transgender students in its classrooms.
Second, K-12 public school teachers do not have a free speech right to discriminate against transgender students in their classrooms, in violation of school policies regulating in-class curricular speech. While it is true that teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, there are expectations placed on teachers as a condition of their employment at a government operated school – like following school policies. The school district paid Mr. Vlaming to provide class instruction and follow school policies, his in-class speech owed its existence to his responsibilities as a public employee.
And last, K-12 public schoolteachers do not have a free exercise right to discriminate against transgender students in their classroom. A primary responsibility of teachers is to provide a protected and inclusive environment in which student can learn and thrive. Treating transgender students in any way differently from cis students is discriminatory and potentially leads to a hostile environment that can negatively impact the well-being of transgender students. When transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated.
While K-12 schoolteachers have the right to free speech as private citizens, they are also government employees whose job is to educate and provide an inclusive environment for all students. The school district’s policy is consistent with the U.S. Constitution, federal, and state law, all of which prohibits public schools from discriminating against transgender students.
On December 14, 2023, the Virginia Supreme Court reversed and remanded.