Last week, 1819 News reported that Baldwin County Public Schools (BCPS) required counselors to affirm students’ preferred pronouns and gender identity. Immediately after reporter Craig Monger broke the story for 1819, BCPS Superintendent Eddie Tyler told reporter Erica Thomas that the handbook section in question was not part of BCPS’s policies, noting that BCPS should have been more clear on its true position. Tyler emphasized that BCPS will not require employees to affirm a student’s gender identity beyond the one listed on the student’s birth certificate.
I tip my hat to Monger and Thomas for their good journalism, for regardless of whether BCPS was implementing this policy, it appears they will not do so in the future thanks to 1819's investigative reporting.
But what might have happened had Tyler gone the other way, saying that BCPS would affirm student gender identity? In addition to committing political suicide in Baldwin County, Tyler likely would discover that following the handbook’s policy would expose BCPS to legal liability on constitutional grounds.
The landmark 2022 Supreme Court decision in Kennedy v. Bremerton School District illustrates this point. The case centered around public high-school football coach Joe Kennedy, who was fired for kneeling in prayer on the 50-yard line after football games. As I wrote last year, Kennedy was the most consequential Establishment Clause decision in our lifetimes. It also has important holdings for free speech and the free exercise of religion, applicable to school counselors at BCPS not wanting to affirm a student’s preferred pronouns or gender identity.
When Kennedy argued that his actions were protected by the Free Speech Clause, the Court held that the government has a greater degree of control over what one of its employees says than in regular free speech cases. But there are exceptions. If the speech at issue captures academic interests beyond those normally required, then the employee has more freedom to speak. Right now, the gender identity issue is vigorously debated among academics and professionals specializing in this area. Thus, I believe this would be a case capturing such academic interests.
The Court also said that if an employee is speaking on a matter of public concern, their speech is more likely to be protected. The gender identity issue is one of the most hotly debated public subjects of late. Therefore, it seems this exception would be invoked as well, giving a school counselor who objected to affirming a student’s preferred gender identity the upper hand in a free-speech challenge.
Although the courts have not given the Free Exercise Clause the respect it deserves, Kennedy recognized that the Free Exercise Clause could protect such employees. If the government sometimes grants exceptions from generally applicable policies but declines to grant one for religious reasons, it is presumptively unconstitutional.
It is not hard to imagine such a scenario in the BCPS case. Imagine that a child struggling with gender dysphoria tells an LGBT-friendly counselor he or she is struggling with feeling like the opposite sex and wants help overcoming those feelings. If the counselor tells the student that he or she is a sex other than that determined at birth, then failing to grant a Christian counselor the freedom to tell students that there are only two sexes would be unconstitutional.
Finally, there is the matter of parental rights. As Alabama Center for Law and Liberty (ACLL) argued in its amicus brief in Waldrop v. Jefferson County School Board, the U.S. Supreme Court requires schools to defer to the parent’s wishes in such matters. Thus, if a parent does not want a counselor to affirm their child’s preferred pronouns and gender identity, but the counselor disobeys, the school could expose itself to liability.
If BCPS lost the lawsuit in any of these instances, it would have to pay attorney fees for the other side. That gets expensive very fast.
Thus, Tyler’s decision to ditch the handbook was smart. Other Alabama school boards monitoring this story should follow suit. Forcing counselors to be open and affirming about gender identity against their will would paint targets on school districts’ backs for civil-rights groups like ACLL. It’s best to stick with what biology has taught throughout human history—until five minutes ago, that is. There are two sexes, and the government should not force counselors to deny such a fundamental truth.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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