The Virginia Supreme Court ruled in favor of a high school teacher, finding that the circuit court wrongly dismissed the teacher’s claims against his former employer that had terminated the teacher after he refused to use a transgender student’s proper pronouns. The Court reversed and remanded the case, holding that the teacher had viable claims under both the Virginia Constitution and the Virginia Religious Freedom Restoration Act.
In an opinion issued December 14, 2023, the Virginia Supreme Court found that in Vlaming v. West Point School Board the circuit court erred in dismissing a public school teacher’s suit against his former employer for violations of the Constitution of Virginia and the Virginia Religious Freedom Restoration Act. The Plaintiff, Peter Vlaming, was a high school French teacher at West Point High School. In the Fall of 2018, one of his students who was assigned-female-at-birth transitioned and started to go by a traditionally masculine name and use masculine pronouns. While Vlaming used the student’s new masculine name, he refused to use masculine pronouns for the student, asserting that it was against his religious and philosophical beliefs; instead, he opted to not use any third-person pronouns at all. After several warnings from school officials about his continued refusal to use masculine pronouns in reference to the transgender student, the West Point School Board terminated Vlaming, alleging that his conduct constituted discrimination and harassment on the basis of gender identity.
Vlaming filed suit in the Circuit Court of King William County, alleging that the School Board and school officials violated his free-exercise, free speech, and due process rights under the Constitution of Virginia, as well as his rights under the Virginia Religious Freedom Restoration Act. In response to Vlaming’s claims, the School Board and school officials asked that the circuit court dismiss the claims, which the court did; Vlaming appealed.
In holding that Vlaming had a viable claim under Article I, Section 16 of the Constitution of Virginia, the Virginia Supreme Court found that federal doctrine surrounding free exercise under the U.S. Constitution, where neutral secular laws are not found to be infringements on free exercise, does not reflect Virginia’s free exercise doctrine. The Court held that the government may only infringe on an individual’s free exercise rights for “overt acts against peace and good order.” With that in mind, the Court reframed Vlaming’s free exercise issue as whether his sincerely held religious beliefs caused him to commit “overt acts against peace and good order”, and if he had, whether the state’s compelling interest could be satisfied by less restrictive means. In reversing and remanding this issue, the Court did not rule definitively on whether Vlaming had in fact committed “overt acts against peace and good order” but it did comment that “mere ‘objectionable’ and ‘hurtful’ religious speech” was not enough to meet this standard.
The Court tackled the issue of free exercise from another angle as well – the Virginia Religious Freedom Restoration Act (VRFRA). The Court found that Vlaming established a prima facie claim under the VRFRA because the School Board’s insistence on Vlaming using third-person pronouns in reference to a transgender student were attempts to coerce Vlaming into violating his own sincerely held religious belief.
The Court also addressed two other portions of the Virginia Constitution, holding that Vlaming had a viable free speech claim under Article I, Section 12 and a viable due process claim under Article I, Section 11. The Court held that, in firing Vlaming for what he would not say, the School Board created a “compelled speech” issue. The Court ruled that the Virginia Constitution, similar to the United States Constitution, requires a high burden for the government to justify compelled speech and that the School Board’s right to compel speech is limited to the subject that a teacher is expected to teach – in Vlaming’s case, French.
The Court also turned to federal case law in its analysis of Vlaming’s due process claim. The Court held that due process under Article I, Section 11 of the Constitution of Virginia has similar requirements for fair notice as its federal counterpart in the United States Constitution – a government mandate is unconstitutionally vague if it does not provide “ascertainable standards” that provide citizens fair notice of what is prohibited and what is not. Under that standard, the Court outlined the issue in Vlaming’s case as whether the School Board’s policies put teachers on fair notice that they could be fired for not using third-person pronouns in reference to transgender students.
It is important to note that this case deals with a government employer and government employee. Private employers undoubtedly enjoy certain freedoms in their employment relationships that government employers do not; however, that does not mean there are no implications for private employers. While the constitutional and statutory provisions that the Court addressed in this opinion might not apply to private employers, the analysis for religious accommodation could translate over to Virginia’s prohibition against discrimination on the basis of religion. The issue of transgender rights versus religious beliefs can create significant tension in the workplace. Please contact a WRVB Labor & Employment attorney if you have any questions about navigating these workplace situations.