Americans shouldn’t be forced to say something they don’t believe is true, and parents shouldn’t be forced to have their children indoctrinated into a false ideology.
Unfortunately those rights are under attack from a radical gender identity movement, but thanks to judges, the public is pushing back — and winning.
Consider news just in the past fortnight, some involving favorable judicial decisions and some featuring favorable settlements.
The victorious cases
In Virginia, the West Point School Board in late September paid a $575,000 cash settlement to, cleared the record of, and rehired French teacher Peter Vlaming, who had been fired because he would not refer to students with pronouns different from that of their biological sex. Vlaming, whose record otherwise was excellent, was willing to use a student’s new “preferred name” — “Patricia” instead of “Patrick,” or whatever — when addressing the student, but he said his faith did not allow him to call a boy a girl. His reasonable solution was to avoid pronouns altogether, but the school board fired him anyway.
Last December, the Virginia Supreme Court ruled that the school board was wrong in trying to compel speech and in trying to force Vlaming to violate his faith. The courts wrote that the government and its subsidiaries (such as public schools) cannot “lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs.” For a government entity to require a teacher to violate his faith or else lose his job is essentially no different than for it to create a religious test for employment, which is patently unconstitutional.
Nonetheless, it took another round of court proceedings for Vlaming actually to be made whole, but after last month’s settlement, he has been. Better yet, the schools were forced to change their policy, for the better, going forward.
The second big win came in Pennsylvania, where on Sept. 30, a federal district court ruled in Tatel, Dunn, and Melton v. Mt. Lebanon School District that parents have the right to be told of, and to opt their first grade children out of, lessons wherein a teacher taught that “gender identity” is something that parents merely “make a guess about” when the child is born and that “sometimes parents are wrong.” As with the Virginia teacher’s case, the question isn’t about the merits of transgender ideology but about the rights of people to express or act on beliefs opposed to that ideology.
This mirrors a state court victory from almost exactly a year ago. On Oct. 2, 2023, a Wisconsin circuit court judge ruled that a school district cannot assist with social gender transitioning unless parents consent. In T.F. v Kettle Moraine School District, Judge Michael Maxwell wrote that parents ordinarily have authority and freedom to direct the healthcare for their children and that gender transitions involve questions of both mental and physical health. Because the schools were taking away that parental authority, he wrote, the school district was “interfering with” “a fundamental liberty interest at stake” in the case.
The third recent victory came on Oct. 8, when a three-judge panel of the U.S. 11th Circuit Court of Appeals decided unanimously that the board of the Brevard Public Schools in Florida did not have the authority to choose which views parents can air at public meetings and, effectively, to censor disfavored opinion. “The government’s rules must be viewpoint neutral and reasonable,” wrote the court in Moms for Liberty v. Brevard Public Schools. Because the school board used “unrestrained discretion” in choosing whom to silence and whom to hear, it “did not meet these requirements.”
Not so recent, and involving college students rather than grade-school pupils, the U.S. Supreme Court, in the 2021 case of Uzuegbunam v. Preczewski, upheld the same principle that even if there are zones or venues in which government schools may restrict speech, they absolutely must do so in a content-neutral manner. There, even though a student abided by campus rules to proselytize his Christian faith in a tiny campus “free speech zone,” the student was threatened with arrest — even though other students much more loudly used the zone for different purposes without interference. While the case was more about procedural legal issues than about the underlying free-speech claims by the time it reached the high court, the justices agreed that “it is undisputed that [the student] experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him.”
Meanwhile, although this column has focused on school- and parent-related cases, the same imperatives for religious liberty and against compelled speech effectively were vindicated again last week when Colorado cake artist Jack Phillips won yet another round of court fights about his right to refuse to create expressive content that violates his deeply held religious beliefs.
The constitutional issues
Again, these cases involve not one right but three (speech-related, faith-related, and parental) that, especially in the context of education, often intersect or overlap. The constitutional basis for speech and faith is explicit in the text of the First Amendment, and the issues and arguments are regularly covered in major media. Suffice it to say here that the courts rightly are insisting on restoring the First Amendment clause guaranteeing the “free exercise” of religion to its rightful prominence — and, too, that freedom of speech is equally robust for those who choose what not to say as it is for those who want to be free to speak without government censoring one’s content.
Parental rights, on the other hand, are not explicit in the Constitution but have long been recognized as “fundamental” to the Constitution’s assumptions and guarantees. Parents’ primary authority over their children (absent situations of abuse) was not just a right but a basic part of human nature preexisting the Constitution and, indeed, preexisting the American colonies themselves. In Meyer v. State of Nebraska in 1923, also a case about parental authority related to education, the Supreme Court wrote that the 14th Amendment “without doubt” includes recognition of the right to “establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” It also explicitly recognized “the power of parents to control the education of their own.”
Two years later, in Pierce v. Society of Sisters, the court again explicitly recognized and celebrated “the liberty of parents and guardians to direct the upbringing and education of children.” And it also noted: “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children. … The child is not the mere creature of the State.” And in Parham v. J.R. in 1979, the court wrote that “[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.”
And of direct analogy to cases of gender transition, the same decision proclaimed that “simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.”
Present cases
By now, parental rights should not be controversial, nor should rights of conscience, speech, and faith, and it is good to see courts again recognizing as much. However, the opponents of traditional American liberties keep trying to create brave new worlds where the government knows best and is allowed to act accordingly, contrary to the Constitution’s letter and spirit.
That’s why cases defending these rights continue to be fought. The Alliance Defending Freedom, a traditionalist legal foundation that led or assisted with almost all the recent cases mentioned above, filed suit on Sept. 30 (Wailes v. Jeffersons County Public Schools) in a federal district court in Colorado to stop opposite-gender integration in bedrooms and shower facilities. ADF filed a new brief on Oct. 7 in Virginia court (Figliola v. School Board of the City of Harrisonburg) to protect the same right of employees to decline to use alternate-gender pronouns the state high court just affirmed in the Vlaming case.
ADF also has a case, Bates v. Pakersht, pending in the U.S. 9th Circuit Court of Appeals, contesting a state of Oregon rule prohibiting a woman from being certified as a foster parent merely because she will not promote the Left’s gender ideology. And, at the Supreme Court, the Becket Fund for Religious Liberty (another legal foundation) asked the high tribunal in September to accept an appeal of one of the few recent decisions that went the wrong way in lower courts. As in the Pennsylvania case discussed above, the plaintiffs in Mahmoud v. Taylor rightly demand parental notification and opt-out rights for very young children whose schools insist on teaching them that gender is fluid.
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Indeed, the schools of Montgomery County, Maryland, give books to three- and four-year-olds that do things such as asking them (quoting Becket) “to search for images from a word list that includes ‘intersex flag,’ ‘[drag] queen,’ ‘underwear,’ ‘leather,’ and the name of a celebrated LGBTQ activist and sex worker.”
Enough is enough. The Supreme Court should accept the Mahmoud case and, once and for all, smack down school officials who would trample on parents’ rights.