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The Virginia Supreme Court in December 2023 reinstated a lawsuit by West Point, Virginia, high school teacher Peter Vlaming who claimed his constitutional speech and religious freedom rights were violated when he was fired for refusing to use a transgender student's preferred pronouns. (AP Photo/Steve Helber)

In recent years, some individuals whose mindset does not correspond to the sex they were designated at birth based on their genital organs, have sought to be identified by personal pronouns of their choosing rather than their birth pronouns of “him” or “her.” 


Such transgender people might prefer the non-gender plural pronoun “they” or they might prefer the pronoun of the sex with which they identify. Other transgender people have taken hormones and/or undergone surgeries to align their physical bodies with their new gender identity and want to be called by a new name and new pronouns to match their sexual identity.


Still others consider themselves gender-fluid or reject “he/she” pronouns for other reasons and have adopted preferred pronouns that don’t match their birth sex. 


These individuals may consider it disrespectful, or even a form of sexual harassment, if others fail to use their preferred personal pronoun or name.


For their part, individuals with fixed views of sexual identify, often influenced by their interpretations of Scriptures indicating that God created individuals as either male or female, may find it difficult or even against their own religious beliefs to use new gender designations although they might, as a matter of courtesy, be willing to use last names or utilize other strategies that do not involve pronouns.


U.S. Supreme Court notes use of preferred pronouns in 2020 ruling


To this point, it does not appear that the U.S. Supreme Court has had occasion to weigh in on whether governmental entities, like schools and offices, can force their employees to use a person’s preferred pronouns. 


However, in his dissenting opinion in Bostock v. Clayton County, Georgia, 590 U.S. ____ (2020), where the Court ruled that employers could not, under its interpretation of Title VII of the Civil Rights Act of 1964, fire individuals on the basis that they were gay, Justice Samuel Alito addressed the issue of freedom of speech and the use of gender-neutral or personal pronouns. 


He observed that “several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories. Some jurisdictions, such as New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense, and some colleges have similar rules.” He expressed fears that the Court’s majority decision in Bostock, could lead to charges of sexual discrimination against those who used non-preferred pronouns.


In a more obscure precedent in 1964, Hamilton v. Alabama, the U.S. Supreme Court eventually overturned a conviction for criminal contempt against Mary Hamilton, a leader of the Congress of Racial Equality, for refusing to answer questions after a prosecutor refused to refer to her as “Miss Hamilton” using a courtesy title as prosecutors did for similarly situated white defendants. The Court did not, however, issue an explanation of this decision, which appears to have had more of a racial than a sexual component. 


Lower courts muddled on rights of teachers in pronoun use


Professor Dennis Baron has observed that cases that have appeared in lower courts have generally ruled against laws mandating a particular pronoun use. He observed that a Kansas judge used the idea of religious freedom to uphold a teacher’s right to use the pronouns he pleased. 


And after losing a case in the 6th U.S. Circuit Court of Appeals on the basis that it was attempting to compel speech, such as West Virginia had sought to do when requiring public school students to salute the flag, Shawnee State University settled with philosophy professor Nicholas K. Meriwether after he, on the basis of religious conviction, refused to use the preferred pronoun of a trans individual.  


On Dec. 14, 2023, the Virginia Supreme Court ruled in favor of Peter Vlaming, a high school French teacher who was terminated by the West Point School Board for refusing to use a transgender student’s preferred pronouns. A circuit court had dismissed the case. But it was reinstated by the state supreme court that found that Vlaming had alleged a legally viable free speech claim and a sufficient claim of interfering with his religious rights under the Virginia Religious Freedom Restoration Act.


Precedents remain muddled however. In 2021, a judge required Virginia to reinstate a gym teacher who had voiced opposition to a proposed rule by the school board requiring teachers to use students’ preferred pronouns. 


By contrast, in 2023, the 7th U.S. Court of Appeals allowed an Indiana public school to fire a music teacher who refused to use transgendered students’ preferred pronouns. 


It is likely that courts will continue to address this issue.


John R. Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University.


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