Last week, the American Civil Liberties Union, which was founded on the principle of defending Americans’ civil liberties, filed an amicus brief arguing against Loudoun County Circuit Court teachers who have refused to use “gender-affirming” pronouns. The ACLU of Virginia stated, “While the teachers may disagree with the policy, they do not have the right to violate it in their capacity as K-12 teachers in the Loudoun County school system.”

In August, the Virginia Supreme Court issued an order affirming a lower court’s decision to temporarily reinstate Leesburg Elementary School physical education teacher Tanner Cross after Loudoun County Public Schools suspended him for voicing objections to a proposed policy during the public comment period of a school board meeting.

“The lower court ruled that the school district’s actions were likely unconstitutional, and the state high court agreed,” the Alliance Defending Freedom, which represents Cross, reported, adding, “The school board eventually passed a version of the proposed policy discussed at the May 25 school board meeting, which resulted in Alliance Defending Freedom attorneys recently asking the trial court to allow them to amend the lawsuit to challenge that policy on behalf of three faculty members, now including Loudoun County High School history teacher Monica Gill and Smart’s Mill Middle School English teacher Kim Wright. … The new policy forces all of the school district’s students and staff to refer to ‘gender-expansive or transgender’ students using whatever gender pronoun is chosen by the student, regardless of whether the pronoun is consistent with the student’s biological sex.”

The ACLU, on behalf of ACLU Virginia, ACLU, Equality Virginia, Equality Loudoun, Side By Side, and He She Ze and We, filed a brief challenging the emergency petition and preliminary injunction request filed by the Alliance Defending Freedom on behalf of the three teachers.

The ACLU of Virginia stated, “While the teachers may disagree with the policy, they do not have the right to violate it in their capacity as K-12 teachers in the Loudoun County school system. The policy protects trans and gender-expansive students from discrimination and necessitates equal treatment of all students in Loudoun County. We know that discriminatory practices, such as the refusal to use a student’s gender-affirming pronouns, can exacerbate gender dysphoria and harm socio-emotional development during critical childhood years. Policy 8040 ensures that trans and non-binary students can focus on their education without the added stigmatization, stress and anxiety of being misgendered by their teachers.”

The brief states, “When teachers address students in the classroom as part of their job duties, they are engaging in curricular speech and the school board has both the right and the  responsibility to supervise the messages being sent to students with the school’s imprimatur.”

Journalist Glenn Greenwald noted, “I read this ACLU brief. This is the first time, at least to my knowledge, that ACLU is explicitly arguing in court that the First Amendment’s free speech clause has been interpreted *too broadly* by courts, and are advocating *a more restrictive view* of what free speech means.”

Wendy Kaminer, a former board member of the ACLU, noted in The Wall Street Journal in 2018:

The American Civil Liberties Union has explicitly endorsed the view that free speech can harm “marginalized” groups by undermining their civil rights. “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality,” the ACLU declares in new guidelines governing case selection and “Conflicts Between Competing Values or Priorities.”

This is presented as an explanation rather than a change of policy, and free-speech advocates know the ACLU has already lost its zeal for vigorously defending the speech it hates. …

The 2018 guidelines claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.” In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case.

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