Tanner Cross Case: Why a Virginia Teacher Sued Loudoun Schools

Originally published 2021-06-04.

In late May 2021, Tanner Cross, a physical education teacher at Leesburg Elementary School in Loudoun County, Virginia, stood up at a school board meeting and said he would not use pronouns that did not match a student's biological sex. Two days after his remarks spread, the district put him on paid leave. He sued, won reinstatement in the courts, and in November 2021 settled with the school board, which cleared his record and paid part of his legal costs.

The case became one of the most closely watched school disputes of that year because it sat where two strongly held positions meet: a public employee's right to speak as a citizen, and a school's duty to protect transgender students. Here is what happened, what the courts decided, and what the case does and does not settle.

The board meeting that started it

Loudoun County Public Schools is one of the largest school systems in Virginia, serving more than 80,000 students. In spring 2021 its board was considering new rules on transgender and gender-expansive students. A 2020 state law had told school boards to adopt policies protecting those students from harassment, and the draft Loudoun rules would require staff to use the names and pronouns a student asked for.

During the public comment period, Cross spoke against the proposal. He framed his objection as a matter of conscience: he described himself as a Christian, argued that affirming a child's chosen gender would harm that child, and said doing so would go against his faith. In a later interview he summed up his position in one line: "I'm a teacher but I serve God first."

Clips of the speech travelled quickly. Evangelist Franklin Graham shared the story on Twitter, presenting Cross as a teacher punished for his beliefs.

Coach Tanner Cross made an impassioned speech at a Loudoun County school board meeting on Tuesday in relation to new policies about gender identity, including forcing staff to refer to students using the pronoun of their choice. Now he’s been put on leave. https://t.co/uQAZ6SEJRE

— Franklin Graham (@Franklin_Graham) May 29, 2021

Graham's post, dated Saturday 29 May, describes the speech as given on the Tuesday of that week, which places the meeting on 25 May 2021.

Paid leave, then a lawsuit

On 27 May the district placed Cross on administrative leave with pay. According to reports on the case, the district cited the “disruptive impact” of his comments. He was not accused of mistreating any student. The action was based on what he had said at the meeting, which he gave as a member of the public outside school hours.

Within a week he went to court. Represented by Alliance Defending Freedom, a Christian legal organisation that often takes religious-liberty cases, he filed suit on 2 June. The defendants were the school board members, interim superintendent Scott Ziegler and Lucia Villa Sebastian, the interim assistant superintendent for human resources and talent development.

The complaint argued that the district had punished him for his viewpoint, violating both his free-speech rights and his right to act on his religious beliefs. It described the stakes as protecting "the ability to comment on public policy under consideration without fear of retaliation." Cross asked for an order putting him back in the classroom while the case was decided.

A political flashpoint

The dispute arrived in the middle of the 2021 Virginia governor's race, and it did not stay a local personnel matter for long. Republican candidate Glenn Youngkin, who went on to win the election that November, publicly called on the board to restore Cross to his job.

As governor, I will stand up for teachers like Tanner Cross. I am calling on the Loudoun County School Board to reinstate Tanner Cross fully because they have absolutely ignored his constitutional rights.

If we don’t stand up for our teachers and parents, who will? pic.twitter.com/mI5qGzfzBH

— Glenn Youngkin (@GlennYoungkin) June 1, 2021

Loudoun County became a national symbol in debates over parents' rights, school curricula and gender identity in 2021. Board meetings drew large, often angry crowds, and a June 2021 meeting ended with an arrest. Supporters of the transgender policy, meanwhile, argued that students were the ones most at risk of harm when adults at school refused to recognise who they were.

What the courts decided

Cross won at each stage. In June 2021 a Loudoun County circuit judge ordered the district to reinstate him while the lawsuit went forward. The school board appealed, and in late August 2021 the Supreme Court of Virginia upheld that ruling.

On 10 November 2021 the two sides settled. Under the agreement, the district:

• kept Cross in his job,
• removed every reference to the suspension from his personnel file, and
• paid $20,000 towards his attorney's fees.

The settlement ended only the part of the case about his suspension. The broader challenge continued.

Policy 8040 and the wider legal fight

In August 2021, while the suspension case was still in court, the Loudoun board adopted the policy it had been debating. Policy 8040, titled "Rights of Transgender and Gender-Expansive Students", requires staff to use a student's chosen name and pronouns and allows students to use facilities such as bathrooms and locker rooms, and to join groups such as sports teams, that match their consistently stated gender identity.

Cross's lawyers amended the lawsuit to challenge the policy itself. Two more teachers joined: Monica Gill, a history teacher at Loudoun County High School, and Kim Wright, an English teacher at Smart's Mill Middle School. That claim raised a different question from the suspension. The first part of the case was about what a teacher may say at a public meeting; the second was about what a school may require teachers to say to students in class.

How free speech works for public employees

Teachers do not lose their constitutional rights at the schoolhouse gate, but those rights are not unlimited either. The key US Supreme Court case is Pickering v. Board of Education (1968). An Illinois teacher, Marvin Pickering, was fired for writing a newspaper letter criticising how his school board spent money. The court ruled that firing him violated the First Amendment, and Justice Thurgood Marshall described the task as weighing the teacher's interest in speaking out as a citizen against the employer's interest in running public services efficiently.

Later cases narrowed that protection. In Garcetti v. Ceballos (2006), the court held that statements public employees make as part of their official duties are not protected by the First Amendment at all. That distinction mattered here. Cross spoke at a board meeting during a public comment period, which looks much more like Pickering's letter to the editor than like an instruction given in a classroom. That is a large part of why the courts ordered his reinstatement so quickly.

The same reasoning also explains why the suspension ruling did not decide the policy challenge. What a teacher says to students during lessons is closer to official duties, where schools have far more authority.

Common misunderstandings about the case

• "He was fired for refusing to use pronouns." Not quite. He was placed on paid leave because of comments made at a public meeting, before the pronoun policy had even been adopted, and the reported reason was disruption rather than anything he had done in class.
• "The courts ruled that teachers can ignore pronoun policies." They did not. The rulings concerned retaliation for public speech. Whether a district can require particular pronouns in class is a separate legal question, and it is still being argued in courts around the US.
• "The district admitted wrongdoing." A settlement is a compromise. The board agreed to clear his record and pay part of his fees, which ended the suspension dispute without a full trial.

For readers following similar disputes, the practical lesson is that context decides a great deal: where an employee spoke, in what role, and what the employer can show about real disruption all shape how a court weighs the case.

Sources: Catholic World Report, on the November 2021 settlement; The Independent, on the June 2021 lawsuit; Wikipedia: Pickering v. Board of Education; Wikipedia: Loudoun County Public Schools; first reported via iHeartIntelligence.