Amid the sparkling lights, hot chocolate and general festive cheer of December and the New Year, it can be hard to remember that the gears of the legal world are still turning. This was especially true for my fellowship project, where the intersection of LGBTQIA-plus rights and state/church separation continues to make itself evident in the courts at all levels.
We have gotten some good news: The Supreme Court declined to hear a case that could have allowed it to overturn conversion therapy bans, had it ruled that talk therapy is “speech” that cannot be regulated by the government. This is important for state/church separation for two reasons. First and foremost, the majority of conversion “therapy” — the debunked practice of trying to change someone’s sexual orientation or gender identity to align with cisheteronormative expectations — is done through religious service providers, based on the religious cultural belief that sex and gender are the same thing, and that people should only be heterosexual. Second, this represents the Court rejecting a dangerous strategy that we have seen before from Christian extremists attempting to circumvent the law: recategorizing religious belief as “speech” as they did in the 303 Creative case.
While these are positive developments, we remain concerned by the continuing threats against the rights of LGBTQIA-plus communities. Look no further than state courts in Virginia, where the war for transgender rights is still being waged.
Peter Vlaming, a former French teacher at a West Point High School in Virginia, was told that a student and his family had informed the school of his gender transition over the summer, and that he would be going by a masculine name and pronouns in the new school year. What should have been a fairly simple adjustment was apparently a problem for Vlaming, who said that because of his religious belief that a person’s sex is biologically fixed, he could not use male pronouns for a student who was assigned female at birth.
To give credit where credit is due, Vlaming did agree to use the student’s new name, and to avoid using pronouns altogether when referring to said student in order to at least avoid blatant misgendering. He even went out of his way to avoid singling out the trans student in his French class by asking the students to choose new French names despite their having chosen names in the lower level class, and attempted to avoid using third-person pronouns for all students as much as he could. This is more than many people with objections to transgender people will do, so I absolutely don’t want to discredit that he took a large step for someone still learning about trans people and allowing their world view to evolve. We should take the time to encourage even partial steps, rather than fall for the trap of absolutism.
But refusing to use pronouns is still a form of misgendering, and more important regarding the legal issue at play here, is against the school’s policy. On multiple occasions, Vlaming was given fair notice in both verbal and written formats that continued refusal to comply with school policy would likely result in his termination, as would be the case if he were in violation of any other school policy. After a heated school board meeting, Vlaming was ultimately fired for insubordination.
Unsurprisingly, Vlaming sued, with the Christian nationalist legal organization Alliance Defending Freedom chomping at the bit to prioritize religious bigotry over the rights of children to receive an education. ADF has been chasing after cases in which religious teachers have been penalized for refusing to treat their transgender students with respect, causing disruption to the school environment. They’ve brought three similar lawsuits in Virginia, as well as suits in Kansas, Ohio and Indiana.
Vlaming sued in state court for breach of contract, stating that the school had violated his religious liberty and free speech rights, among others. The case was dismissed by a judge at the lower court level before trial, on the grounds that Vlaming did not have a strong enough free exercise claim. It should have been dead from there. Vlaming violated a neutrally applicable policy, and regardless of his intention, caused harm to the student to the point that he withdrew from Vlaming’s French class. This had a real, substantive impact on the student’s education: There is only one French teacher at the school, which meant that he did not have equal access to the same opportunities as his peers. (And even had there been another French teacher, last I checked, most reasonable people are of the mind that “separate but equal” isn’t exactly a great policy choice.)
The Virginia Supreme Court, however, did not see it that way, and instead ruled that the case must go to trial at the lower court. The court’s reasoning hinged on the idea that Virginia law requires a much higher bar than the First Amendment for potential harm caused by religious practice in order for the state to have a compelling reason to restrict it. While one would think that the rights of the student would at least play some role in the analysis, the majority side-stepped the issue, only acknowledging the concept once in its 73-page opinion (to say that they would not be discussing it).
This case will now proceed to trial, in which ADF will either win, damaging the rights of students across Virginia, or it will inevitably appeal to a state supreme court that has already clearly signaled its opinion on the issue.
Even if you don’t care about trans people, the overarching theme of this argument is one you should be concerned about if you care at all about state/church separation. In fact, if you don’t care about trans people, you should be especially concerned about this case (and other cases like it), or else you risk letting yourself be ignorant of the end goal of Christian nationalists. I’ve written before about how the current attack on transgender rights is not actually about trans people. The Christian nationalist movement has realized that transgender people are a useful vehicle in order to turn public opinion and legal precedent in its favor. ADF is taking on cases like this at an exponential rate in order to build a body of case law that essentially makes religion a get-out-of-jail-free card.
I constantly have to remind myself and others, that as nonsensical as we might find the arguments of religious extremist groups, a difference in values is not the same as a disparity in intelligence or competence when it comes to achieving their goals. This strategy of focusing on a vulnerable minority group that few Americans have experience with is shrewd. That’s what makes these groups so dangerous. It’s easy to get people to look away when at first glance the rights that are being violated have nothing to do with them.
But decisions that place religious beliefs over the rights of transgender people don’t just stop with us. That’s simply not how the law works.
Let’s take a moment to step back and follow the logic. What happens when a teacher believes that disability is a punishment from God for sin, and therefore refuses accommodations to a student with an Individual Education Plan or a 504 plan? What happens when a teacher believes that God made white people the superior race, and refuses to teach students of color? What happens when a teacher feels that it’s an essential part of their religion to proselytize to students, and requires them to pray before every class? Just like with the trans student, there is no immediate, physical harm caused by these actions. But it doesn’t take a law degree to see that there is in fact harm caused. That’s why in all of these cases, students are meant to be protected by anti-discrimination laws and the First Amendment.
Rights in a thriving, pluralistic society are a balancing act. I’m the first to say that this balancing act is a difficult one — the challenge of striking that balance is part of what I love about being a lawyer. When there is an issue of competing rights, that process necessarily involves considering which party is more vulnerable to harm. I doubt I need to explain how in cases where the rights of teachers and students are at odds, students are always going to be the party most in need of protection.
I’m not going to ask you to care about trans people, though I will always encourage people to learn about the long and rich history of human gender diversity and the nuances of biology, psychology and sociology underlying it. But if you think trans rights aren’t critical for maintaining a secular democracy where laws are based on reason, not religion, you’re failing to see the forest for the trees. Stop focusing on your personal discomfort, look at the big picture and ask yourself: Who is the real enemy here?