Contending with Forced Speech

One of the most intrusive aspects of the culture war being waged by the Left is the attempt to control speech. If people can be made to say or not say things that accord with political correctness, society can be controlled according to the identity politics of the Left. While America has a much stronger free speech doctrine that most of the West, the advent of transgenderism, or self-defined sex has given a new opportunity for controlling speech in the requirement that self-chosen pronouns be used.

A recent case from Virginia gives hope that at least in that state, and perhaps by the example it gives, nationally, free speech and even religious liberty will give protection against being required to use pronouns which are wrong for a person’s true, biological sex. Peter Vlaming, who was a French teacher at West Point High School in West Point, Virginia was fired from his job in October 2018, for declining as a matter of personal policy ever to use pronouns for that student, thus avoiding the use of male pronouns for a female student. The case actually had begun earlier when he accidently used a female pronoun for the biologically female student.

The Case of Peter Vlaming

The case began in the fall of 2018, when Vlaming accidently called the transgender student “she” in front of the class. The same day, the student complained, and he was placed on administrative leave. That October, the school board voted unanimously to fire him. In 2019, he filed suit against the school board, which lawsuit was dismissed by a Virginia Circuit Court. In September 2021, he requested that the Virginia Supreme Court revive the suit, and the court agreed in February 2022 to hear his petition, which it granted on December 14, 2023. The case was remanded to a lower court for a ruling in line with the state Supreme Court’s decision supportive of Vlaming’s religious liberty and free speech claims.

As was noted by LifeSiteNews, Vlaming was willing to not use female pronouns in reference to the student, and use her new masculine name rather than any pronouns whenever referring to her, but this was not enough for the school administration. The student said that she felt “singled out” by Vlaming not referring to her using masculine pronouns. Although a public hearing resulted in a show of enormous public support for Vlaming, the school board voted 5-0 to fire him for refusing to use female pronouns.  A subsequent walk-out by students in support of Vlaming again showed enormous public support for those refusing to use false pronouns, but despite enormous public support, the decision of the school board remained unchanged. For those committed to political correctness, hurt feelings (at least claimed hurt feelings) take priority over obvious truth. A lawyer for the school board said teachers should follow school policies, thus implying they should comply regardless of their religious, conscience, and free speech rights. The school principal said he couldn’t “think of a worse way to treat a child” than to not acquiesce in her delusion.

As was noted by the Alliance Defending Freedom, which represents Vlaming in his lawsuit, he was required by school officials to proactively use male pronouns in reference to the student, even when the student was not present. As Vlaming told Fox News at the time of the Virginia Supreme Court hearing late last year “Teachers are being required to parrot beliefs that, I would say, are false on their face, but that many teachers don’t hold.” He also said that “we’ve come to a point where your job may be in the balance, but if people don’t take a stand, then we’re basically going more and more toward a totalitarian system where things that have nothing to do with the curriculum are being required.” Similarly, ADF attorney Caleb Dalton said that the result of the case would decide in Virginia, and thus affect national debate on “whether or not public schools will be allowed to fire teachers simply because they can’t express and personally endorse an ideological belief.”

As was recently noted by the Heritage Foundation’s Daily Signal, the state supreme court’s decision crucially interprets the free exercise of religion guaranteed by Virginia’s constitution more broadly than the U.S. Supreme Court interpreted the federal guarantee of religious freedom in its much criticized Employment Division vs. Smith decision (1990), or the nineteenth century Reynolds vs. United States (1879) decision which restricted religious freedom to belief only, not conduct. Importantly, the State Supreme Court’s decision cited Article 1, Section 16 of the Virginia Constitution, which specifically mentions conscience protection in its long section guaranteeing religious freedom. The decision notes repeated opinion from various justices of the U.S. Supreme Court that Smith was wrongly decided, also notes that federal courts agree that “[S]tate courts are absolutely free to interpret state constitutional provisions to accord greater protection” than federal-court interpretations of “similar provisions of the United States Constitution.”

Regarding free speech, or more exactly, the compelled speech ban which derives from free speech doctrine, the Virginia State Supreme Court referred to the recent 303 Creative vs. Elenis (2023) case. It noted that this decision from the U.S. Supreme Court declares that free speech doctrine prevents the government from compelling “an individual to create speech [he] does not believe” and to “‘utter what is not in [his] mind’ about a question of political and religious significance.” The Virginia Supreme Court correctly noted that Vlaming was fired for what he refused to say, not for what he did say. They dismissed a claim by dissenting justices that an “official duties” doctrine limited the free speech of public employees, since that doctrine pertains to “expressions employees make pursuant to their professional duties … not expressions employees refuse to make.” Further, Vlaming was dismissed certainly not for anything related to instruction in the French language but regarding “an ideological topic that has engendered fierce public debate.” 

The Ideological Nature of “Preferred” Pronouns

Here the court referred to a recent decision (2022) by the federal Sixth Circuit Court of Appeals in which a professor, Nicholas Merriweather, was dismissed from Shawnee State University in Portsmouth, Ohio for failure to use preferred pronouns. The court ruled that his free speech rights were violated. That decision noted that “from courts to schoolrooms this controversy continues … the use of gender-specific titles and pronouns has produced a passionate political and social debate.” As related by the Foundation for Individual Rights and Expression (FIRE), Merriweather had inadvertently referred to a transgender identifying student as male when female identity was claimed. He declined to comply when told of offense because of religious and philosophical beliefs. Merriweather was given a written warning. He went through an internal grievance process, with no favorable result. He then sued Shawnee State. The federal Sixth Circuit Court then found that his free speech rights were violated. This was a case in federal courts, but the Virginia state court’s point was that compelled pronouns are an ideologically charged issue, and thus reasonably one on which speech is protected by the First Amendment in this federal case. Merriweather’s case also shows that free speech doctrine remains robust in this country.

Indeed it should. The famous West Virginia State Board of Education vs. Barnette case (1943), which dealt with Jehovah’s Witness children who refused to salute and pledge allegiance to the flag during World War II, admittedly a case in reference to students rather than teachers, but nonetheless overriding school policy in the name of the Constitution, Associate Justice Robert Jackson, writing for the majority, declared that:

 “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

This judgment against forced speech, which even goes beyond speech to conduct, has been a powerful precedent for freedom of speech, and a guard against compelled speech in the years since.  

Public Support for Objectively Based Sex

The Alliance Defending Freedom noted in a release that Vlaming has support across a broad spectrum of society, with amicus briefs to the Virginia Supreme Court in support of him from “the Virginia attorney general, physicians, feminists, legal scholars, and a variety of [other] organizations.” Since the scientific and factual nature of transgender claims is important in the controversy, the brief submitted by several physicians is worth noting.

It maintains that transgenderism, with its demands for “social affirmation” and “‘gender-affirming’ interventions” is not “grounded in science, but in social experimentation,” and was essentially begun by Dr. John Money of Johns Hopkins University Medical Center in the 1970s. The term “gender” does not appear in the medical literature, it maintained, prior to destructive experimentation of Dr. Money in the 1970s. His work involved raising male twins on separate paths as a boy and a girl, which led to their suicide as young adults. Dr. Paul McHugh was able to shut down Money’s gender clinic after he came to Johns Hopkins. The brief notes that Adverse Childhood Experiences (ACEs), are often associated with transgender identification among children. ACEs include such things as “death of a parent or sibling, presence of drug or alcohol abuse in the home, incarceration of a parent, physical, emotional, or sexual abuse, often within the family, and frequent moves to new and unfamiliar locations. ACEs create a fearful, unreliable environment in which the child struggles to live.”

The physicians’ brief further noted with work of Dr. Kenneth Zucker, a clinical psychologist from Toronto, who studied children who identified with the opposite sex and developed “a healing process that realigned the child’s perception of his or her gender identity with his or her sex by the time he or she passed through puberty to young adulthood. The small group of young adults that remained incongruent required ongoing counseling to reduce the likelihood of taking their own lives.”

But Dr. Money’s associates were able to advance his ideas with the help of the Harry Benjamin Society, which renamed itself the World Professional Association of Transgender Health (WPATH). It advanced “Standards of Care” that proposed medical and surgical interventions for people who thought they belonged to the opposite sex. The so-called “Dutch Protocol” then extended this intervention to children, beginning with a change in clothes and names, puberty blocking drugs, cross-sex hormones, and ultimately sexual anatomy altering surgery.  A committee of WPATH members then advanced “Guidelines for the Care of Transgendered Persons” which the Endocrine Society adopted, which was then advanced as “standards of care.” But the brief notes that “standards of care” implies a medical consensus after careful review and discussion.  The transgender “standards of care” are really the work of a committee, not a consensus of medical professionals generally, and the “standards” specifically admit that all but three of their recommendations have “little or no scientific validity.” Similarly, statements from “the Pediatric Endocrine Society, the American Academy of Pediatrics, and the American Medical Association also touted as consensus ‘standards of care’ are just ‘me too’ documents with no broad support from the general membership of those professional societies.”

The brief’s main point is that Vlaming was fired for refusing to comply with an unscientific, ideologically driven agenda. The “social affirmation” of really belonging to the opposite sex that they involve, if implemented as a mandatory standard, as was done at West Point High School, means teachers must make false statements to uphold unscientific, ideologically driven beliefs when required by the government. It is difficult to imagine anything more contrary to the principle of the Barnette decision.

Although we can be gratified by these victories for free speech, against forced speech, and in the case of Virginia’s constitutional law, in favor of religious and conscience freedoms, the transgender movement and its drive for mandatory social affirmation and freedom from offense remains strong. It gets its power from the sad stories people have to tell because their desires (which Christians recognize as sinful) cause them to deny their obvious sexual nature (in the case of transgenderism) or pursue activities opposite their sexual nature (in the case of homosexuality). But life must be based on reality, not wishes or inclinations. It will take courage to insist on this, but the sooner this is finally admitted, both by political authorities and the public at large, the sooner real personal and social healing can come.

Denial of one’s sex is sin, as is evident from Deuteronomy (Deut. 22:5). The Deuteronomic condemnation is included in a series of commands Christians would regard as applying only to Israel, but such identification with the opposite sex is held to be an abomination, is a denial of the creation order, and reasonably is a perennial moral condemnation together with other sexual prohibitions.

People should not deny the order of creation, and the obvious truth, that sex is the real, physical difference between males and females. Laws, public regulations, and private policies may not allow conscience objection, but self-defined sex should never be affirmed in our speech, we should rather take any penalty for speaking only the truth.