Asserting their First Amendment rights against compelled speech, elementary-school teachers in Loudoun County, Virginia, are challenging a school-board rule requiring them to address transgender and ‘gender expansive’ students by their preferred pronouns. The teachers claim that the pronouns convey messages about transgenderism that violate their religious beliefs as well as their understanding of biology. As a compromise, in an effort to balance their speech rights with students’ interests in being recognised, the teachers have offered to address the students only by their names, eschewing the use of any offending pronouns. The American Civil Liberties Union (ACLU) has sided against them.
Confirming its transformation from a free-speech organisation into a progressive advocacy group, it has submitted a brief in Cross v Loudoun County, advocating restrictions on fundamental First Amendment freedoms. According to the ACLU, public-school teachers should be required to affirm controversial, state-imposed orthodoxies about sex and gender in violation of their conscience, in order to protect students from discrimination.
Sad to say, the ACLU’s brief against the First Amendment is neither a shock nor a surprise – it was predictable. Its retreat from defending speech that conflicts with progressive values and ideas dates back at least 15 years. Still, there is a difference between avoiding litigation that requires defending the right to use whatever progressives consider harmful speech and engaging in litigation to suppress it or to compel speech aimed at mitigating its alleged harms. The ACLU has crossed a line, effectively advancing arguments about the direct, indisputable dangers of offensive language and ideas that have long been used to justify bans on ‘hate speech’.