Uncommon Descent Serving The Intelligent Design Community

Refusing to Participate in a Lie Can be Costly; Just Ask Peter Vlaming


I will never forget the day many years ago when I first confronted the transgender issue (though we did not call it that then) in my law practice.  I received a call from a school principal asking for advice in dealing with a kindergarten boy whose mother was dressing him up in girl’s clothing and insisting that he be allowed to use the girls’ restroom.  I was shocked by the mother’s demands and advised the principal to deny her request. I might have used the word “duh” at some point in the conversation. I also advised the school to consider whether a report to Child Protective Services of possible child abuse was in order.

Of course we are talking about ancient, practically antediluvian, history here, and naturally I would not give a school the same advice today. Because some years afterward, the Colorado Civil Rights Division spoke to the issue.  (Yes, I am talking about the same outfit that infamously ordered an evangelical Christian to use his artistic expression to celebrate an event contrary to his most fundamental beliefs, and when he balked said he was no different from someone defending the Holocaust.  But I digress.)

In a 2013 case involving a another kindergarten boy pretending to be a girl, the Division laid down the law in Colorado, and the law the Division laid down was not the least bit subtle. But what it lacked in subtlety, it made up for in clarity.  No lawyer ever has to guess about what the Division will require Colorado public schools to do in these cases – which is any damn thing the transgender student demands.  A boy wants to come to school in dresses and makeup.  You have to let him.  He wants to use the girls’ restroom.  You have to let him.  You can offer him a gender-neutral option, but if he rejects it you have to allow him to use the restroom of his choice. 

Nowadays the issue continues to come up from time to time, and the pattern is usually the same.  1. Panicked principal calls.  2. I tell him the law is very clear and what he must do to comply with it.  3. Panicked principal goes through the stages of grief — denial, anger, bargaining, depression and, finally, acceptance.  4. No longer panicked principal (bewildered, certainly, but not panicked) goes forth and deals with the matter.

But Barry, aren’t you cooperating with evil when you advise schools to allow boys to use the girls’ restroom?  No, for the simple reason that I do not advise schools to allow boys to use the girls’ restroom.  I tell schools that Colorado law requires them to allow boys to use the girls’ restroom — a subtle but very important distinction. I did not enact the law.  I do not agree with the law.  But I am obliged to tell the schools what the law is. 

What about the rights of all of the girls and their parents who don’t want to use the restroom with a boy?  That’s another part of Colorado law that is very clear — the Colorado Civil Rights Division does not give a damn about the rights of those girls and their parents. 

As far as I know, all of my school clients that have been confronted with the issue have made their girls restrooms available to these boys.  And they accommodate the girls who object by allowing them to use a gender-neutral restroom (usually the staff restroom), which can lead to the absurd – but legal – result of a single boy using the multi-stall girls room, while a line of girls waits outside the single seat staff restroom.

This has been the status quo since 2013, but recently I have sensed that the progressives, having won the bathroom battle (in Colorado if not in other states), are ready to take the fight to the next level, and several months ago I sat down with some principals to discuss the issue. I reminded them that the law is clear when it comes to accommodating these students.  You may not like it, but your duty under the law is unambiguous.  But, said I, you may not have that luxury for long, because I predict that in the very near future you are going to become combatants in the pronoun wars, and that is going to be a very difficult situation.  You may not like capitulating to a boy’s demand to use the girls restroom, but at least you can do that while accommodating the rights and beliefs of the girls and their parents who don’t want to use the bathroom with him.  It is difficult but possible.  But what is going to happen when that boy insists that his evangelical Christian teacher refer to him using feminine pronouns and the teacher refuses?

Certainly, under Colorado law the boy has a right to pretend to be a girl at school.  And he has a right to require the school to go along with his pretense at least to a certain degree.  But the evangelical Christian teacher also has rights. She has the right to her sincerely held religious beliefs, and under the so-called “compelled expression” cases she has a right to be free from the government requiring her to speak contrary to her deeply-held beliefs.  In West Virginia State Board of Education v. Barnette, the Supreme Court put it this way:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

The compelled speech doctrine means that the government cannot compel you to, for example, salute the flag, or recite the pledge, or affix the phrase “live free or die” to your car (an actual Supreme Court case). 

When a boy says he is a girl, that is a lie.  To be sure, under Colorado law he is entitled to tell that lie, and he is entitled to require the school to accommodate that lie.  But will the government require others to repeat his lie – which they will be doing implicitly every time they refer to him with a feminine pronoun?

The clash that is coming up and will soon be decided is which of these rights will prevail, because surely they are mutually exclusive. One or the other is going to have to give.  Will the boy’s right to lie prevail over the teacher’s right to be free from being compelled to affirm the lie?  My best guess is that the teacher’s right to be free from compelled speech will prevail.  Consider that quote from West Virginia State Board of Education v. Barnette again.  “If there is any fixed star in our constitutional constellation . . .”  It sure seems like the right to be free from government-compelled expression is among the most fundamental of constitutional rights. 

But I could be wrong.  After all, progressives often treat other people’s right to be free from compelled speech as a mere nuisance not worthy of consideration.  To cite just one example, the Masterpiece Cakeshop case is at bottom about whether an artist can be compelled to express views contrary to his most basic beliefs.  And we all know where the progressives in the Colorado Civil Rights Division came out on that question.

It turns out I was prescient.

A couple of weeks ago in a case out of West Point, Virginia.  A local school board considered the clash between the transgender student’s right to lie and a teacher’s right to be free from compelled expression.  And they came down on the side of the student.  The case is heading for the federal courts, and I predict the teacher will ultimately win.  But that result is far from certain. 

In the meantime, Peter Vlaming is my new hero.  “Let the lie come into the world, let it even triumph. But not through me,”  Alexander Solzhenitsyn wrote in Cancer Ward.  Vlaming is the teacher in the Virginia case.  He lived
Solzhenitsyn’s dictum in real time, when he refused to knuckle under to the tyranny of the progressives who dominated the school board.  And he suffered for it.  Solzhenitsyn would not have been surprised.  Indeed, he predicted this very thing, because he, of all people, knew that refusing to participate in lies would be costly.  In Live Not by Lies he wrote:

And the simplest and most accessible key to our self-neglected liberation lies right here: Personal non-participation in lies. Though lies conceal everything, though lies embrace everything, we will be obstinate in this smallest of matters: Let them embrace everything, but not with any help from me . . .

Some, at first, will lose their jobs. For young people who want to live with truth, this will, in the beginning, complicate their young lives very much, because the required recitations are stuffed with lies, and it is necessary to make a choice.

But there are no loopholes for anybody who wants to be honest: On any given day any one of us will be confronted with at least one of the above-mentioned choices even in the most secure of the technical sciences. Either truth or falsehood: Toward spiritual independence, or toward spiritual servitude.

And he who is not sufficiently courageous even to defend his soul — don’t let him be proud of his “progressive” views, and don’t let him boast that he is an academician or a people’s artist, a merited figure, or a general –let him say to himself: I am in the herd, and a coward. It’s all the same to me as long as I’m fed and warm. . . .

You say it will not be easy? But it will be easiest of all possible resources. It will not be an easy choice for a body, but it is only one for a soul. No, it is not an easy path. But there are already people, even dozens of them, who over the years have maintained all these points and live by the truth.

So you will not be the first to take this path, but will join those who have already taken it. This path will be easier and shorter for all of us if we take it by mutual efforts and in close rank. If there are thousands of us, they will not be able to do anything with us. If there are tens of thousands of us, then we would not even recognize our country.

If we are too frightened, then we should stop complaining that someone is suffocating us. We ourselves are doing it. Let us then bow down even more, let us wait, and our brothers the biologists will help to bring nearer the day when they are able to read our thoughts are worthless and hopeless.

And if we get cold feet, even taking this step, then we are worthless and hopeless, and the scorn of Pushkin should be directed to us:

“Why should cattle have the gifts of freedom?

“Their heritage from generation to generation is the belled yoke and the lash.”


*In Wooley v. Maynard, the Supreme Court struck down a New Hampshire law requiring all cars to display the state motto (“live free or die”) on their license plate.

1950 :"We'll establish colony on Mars in 2019" 2019 :"Boys can use girls washroom" (still no colony on Mars) Eugen
Sev, Still a strawman Sev. The issue is what is legal and what is illegal. Teaching creationism in a public school is not legal. Barry Arrington
Seversky is confused. It is not a breach of any contract to not teach the students lies and nonsense in a science classroom. And evolutionism is a lie and nonsense ET
PS: Cicero is highly relevant, in his introduction to law:
—Marcus [in de Legibus, introductory remarks,. C1 BC]: . . . the subject of our present discussion . . . comprehends the universal principles of equity and law. In such a discussion therefore on the great moral law of nature, the practice of the civil law can occupy but an insignificant and subordinate station. For according to our idea, we shall have to explain the true nature of moral justice, which is congenial and correspondent [36]with the true nature of man. We shall have to examine those principles of legislation by which all political states should be governed. And last of all, shall we have to speak of those laws and customs which are framed for the use and convenience of particular peoples, which regulate the civic and municipal affairs of the citizens, and which are known by the title of civil laws. Quintus. —You take a noble view of the subject, my brother, and go to the fountain–head of moral truth, in order to throw light on the whole science of jurisprudence: while those who confine their legal studies to the civil law too often grow less familiar with the arts of justice than with those of litigation. Marcus. —Your observation, my Quintus, is not quite correct. It is not so much the science of law that produces litigation, as the ignorance of it, (potius ignoratio juris litigiosa est quam scientia) . . . . With respect to the true principle of justice, many learned men have maintained that it springs from Law. I hardly know if their opinion be not correct, at least, according to their own definition; for “Law (say they) is the highest reason, implanted in nature, which prescribes those things which ought to be done, and forbids the contrary.” This, they think, is apparent from the converse of the proposition; because this same reason, when it [37]is confirmed and established in men’s minds, is the law of all their actions. They therefore conceive that the voice of conscience is a law, that moral prudence is a law, whose operation is to urge us to good actions, and restrain us from evil ones. They think, too, that the Greek name for law (NOMOS), which is derived from NEMO, to distribute, implies the very nature of the thing, that is, to give every man his due. [--> this implies a definition of justice as the due balance of rights, freedoms and responsibilities] For my part, I imagine that the moral essence of law is better expressed by its Latin name, (lex), which conveys the idea of selection or discrimination. According to the Greeks, therefore, the name of law implies an equitable distribution of goods: according to the Romans, an equitable discrimination between good and evil. The true definition of law should, however, include both these characteristics. And this being granted as an almost self–evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality. This indeed is the true energy of nature, the very soul and essence of wisdom, the test of virtue and vice.
Sev, while Wikipedia will be unreliable on this subject, it does bring to bear that the claim to right-X implies a demand of duties to support X. This is rich with implications. For, to properly claim that others have a duty to support X implies that rights are issues of moral government. So, immediately, to properly claim a right_X, one must manifestly be in the right concerning X as no person can be properly held to have a duty to enable or support evil. Where also, any freedom Y extends only so far as it does not impinge adversely on the legitimate rights of others and responsibilities of sound citizenship in communities that to thrive long-term must soundly nurture and protect children, requiring sound family life patterns and child-protective, supportive public and educational space. Likewise, the rights and moral government questions extend to known duties to truth, right reason, justice, etc. This is where the known law of our nature begins and cannot be evaded. To make your claims -- including the attempt to dismiss the law of our nature as morally governed creatures -- you had to implicitly rely on our acknowledgement of just that government. A key tell. Let me add, this points to understanding justice in community as the due balance of rights, freedoms and responsibilities. Similarly, the question of bridging the IS-OUGHT gap is therefore central, even to the business of argument, and points to the only level that it can be bridged and fused: world-root. Where to fill the bill we need a necessary being (so, independent of other entities and so also eternal) that is inherently, maximally good. Coming back, just to reason in general and about rights, we are inextricably entangled in moral government. In the case of confusion about sexual identity and behaviour as well as associated demands for upholding in such behaviour, the burden has not been met nor can it be met as the baseline purpose of the complementary sexes is plain, as well as the manifest danger to most girls who by reason of size and want of upper body strength are potentially prey for abusers -- something that is manifest. That's why rape has long been acknowledged as a major crime against the person. Going further, alleged genetic determinism on sexual conduct and habits is an ill-founded ideological claim [cf. here], especially in the face of massive evidence that we are morally governed creatures; with, plasticity in our behaviours AND prone-ness to addictive, destructive attitudes, behaviour and habits. So, schools, educators and the general public should be concerned to uphold family and child-friendly, protective educational and public spaces, which grounds public morality as a legitimate principle. In addition, contribution to the moral turpitude of a child is a major natural law crime, for cause. There is more, but all of this points to how reprobate and even outright iniquitous and oppressive too many centres of influence and power across our civilisation have become. A big warning sign. KF kairosfocus
Barry Arrington @
what of the cases of high school biology teachers who refuse to teach the theory of evolution because it conflicts with their religious beliefs and so they teach Biblical creationism in the science classroom?
That does not happen in any public school. You have set up a straw man
The National Survey of High School Biology Teachers published in 2011 reported that
In comparison, 13 percent of the teachers said they "explicitly advocate creationism or intelligent design by spending at least one hour of class time presenting it in a positive light." These are mostly the same group of teachers (about 14 percent) who personally reject the idea of evolution and the scientific method, and believe that God created humans on Earth in their present form less than 10,000 years ago.
It also found that 60% of teachers try to avoid controversy by teaching it directly:
Berkman and Plutzer dubbed the remaining teachers the "cautious 60 percent," who are neither strong advocates for evolutionary biology nor explicit endorsers of nonscientific alternatives. "Our data show that these teachers understandably want to avoid controversy," they said.
The authors also comment on the effect of that caution:
As for the remaining 60%, Berkman and Plutzer suggest that they "may play a far more important role in hindering scientific literacy in the United States than the smaller number of explicit creationists ... even if unintentionally."
This is no strawman. This is evidence that there are a small number of (Christian) teachers who are in breach of their legal and ethical obligations to teach the prescribed science curriculum. There is also a much larger number of biology teachers who are, in effect, being intimidated by (presumably mostly Christian) students, parents and possibly administrators into not openly teaching and endorsing the theory of evolution. In this situation, it is not Christians who are the victims but teachers and students. Seversky
Kairosfocus @ 9
Sev, What is a right, and what confers a right? Your answer, please: ___________
I would say that the Wikipedia entry on "Rights" summarizes my view reasonably well:
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.[1]
I also accept this distinction between rights and liberties:
claim right is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder
I also reject the concept of natural rights following, for example, Jeremy Bentham:
That which has no existence cannot be destroyed — that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle. -- A Critical Examination of the Declaration of Rights
Even if you suppose that rights are endowed by some supreme "lawgiver", if no explanation is provided to support them then what is their authority other than "might makes right"? Seversky
This teacher had a third alternative. He could simply have refrained from using gender pronouns for any of his students
Good point Ed. He tried to do that. It was not good enough for the student. Barry Arrington
In a case like Peter Vlaming’s,, I would argue that, although I disagree with him, his First Amendment right to freedom of expression takes precedence
We agree.
what of the cases of high school biology teachers who refuse to teach the theory of evolution because it conflicts with their religious beliefs and so they teach Biblical creationism in the science classroom?
That does not happen in any public school. You have set up a straw man. Barry Arrington
The teacher's third alternative is to sue the school/ school district. ET
This teacher had a third alternative. He could simply have refrained from using gender pronouns for any of his students. I suspect that would have very effectively got his point across without being in violation of the school rules. Ed George
Shouldn’t the human rights and civil liberties of all parties to a dispute be weighed and balanced against each other?
This issue has nothing to do with human or civil rights.
On the other hand, what of the cases of high school biology teachers who refuse to teach the theory of evolution because it conflicts with their religious beliefs and so they teach Biblical creationism in the science classroom?
Seeing that there isn't any scientific theory of evolution an evolutionism is a lie, that teacher is doing the right thing by not teaching it. I say teach BIOLOGY in BIOLOGY class. What teachers should do is stand up against the lies of evolutionism. Those who do not or refuse should resign ET
Sev, What is a right, and what confers a right? Your answer, please: ___________ (This is the heart of the issue already. Where, we can obviously see that imposition through might and/or manipulation cannot confer a right. Though, it may be necessary to use force in just defence of a right. Likewise, a big clue is in the OP, being subjected to threats in order to be compelled to uphold a lie cannot be just. So, it is absolutely vital to get this straight.) KF kairosfocus
Seversky, you have a warped view of the current state of education in America. The teachers who are being systematically censored and fired in public schools are certainly not Darwinists but are the ones who dare mention Intelligent Design as a viable alternative to Darwinian evolution. The only view being systematically censored in public schools is Intelligent Design, even the mention of it as a viable option! That is exactly why academic freedom legislation has had to been introduced in several states. No Darwinist that I no of has ever been censored or fired for teaching only Darwinism. Only the teachers who dare believe that Darwinian dogma should be questioned in the classroom are the ones who suffer for 'refusing to participate in the lie'. Basically, Darwinists champion indoctrination of students into a supposedly unquestionable dogma instead of education of students to think critically for themselves,,, and Darwinist are notorious for systematically punishing, or trying to, anyone who does not toe the Darwinian party line:
On the Fundamental Difference Between Darwin-Inspired and Intelligent Design-Inspired Lawsuits - Excerpt: *Darwin lobby litigation: In every Darwin-inspired case listed above, the Darwin lobby sought to shut down free speech, stopping people from talking about non-evolutionary views, and seeking to restrict freedom of intellectual inquiry. *ID movement litigation: Seeks to expand intellectual inquiry and free speech rights to talk about non-evolutionary views. http://www.evolutionnews.org/2011/09/on_the_fundamental_difference_050451.html
Systematic discrimination against people who mention Intelligent Design is a pervasive reality in the scientific and education world.
Scott Minnich Richard Sternberg Günter Bechly Eric Hedin Don McDonald David Coppedge Caroline Crocker Bryan Leonard Martin Gaskell Dean Kenyon Roger DeHart Granville Sewell etc.. etc.. https://freescience.today/stories/ Here are many more examples of discrimination against people who dare question Darwinian dogma https://uncommondesc.wpengine.com/intelligent-design/review-of-darwins-doubt-slams-id-theorists-for-not-publishing-in-darwinist-run-journals/
Shouldn't the human rights and civil liberties of all parties to a dispute be weighed and balanced against each other? In a case like Peter Vlaming's,, I would argue that, although I disagree with him, his First Amendment right to freedom of expression takes precedence over the student's preference for a particular gender pronoun since the latter is a courtesy not a right. In this case I would have thought Vlaming has a case against the board for wrongful dismissal. On the other hand, what of the cases of high school biology teachers who refuse to teach the theory of evolution because it conflicts with their religious beliefs and so they teach Biblical creationism in the science classroom? In such cases, surely the teachers have both a contractual obligation to teach the prescribed curriculum and an ethical duty to their students to provide them with the current thinking in biology whether or not they agree with it personally. If they cannot do that in good conscience then they should resign or, if they refuse, they should be dismissed. Seversky
irrational chaos kairosfocus
Back in the 1970's, had this been the law then, and had any of us boys been foolish enough to try to pass ourselves off as girls, this one particular girl would have beat the tar out of us. (Now that I say that, she might have made herself right at home in the boys' room instead...and if she had claimed to be a boy, nobody would have argued with her.) The rest of the girls would have shamed any such boy into wishing he was dead. Yessirree, times have changed. Today, those girls would need a swift talking to, in order to sensitize them (to boys' gender issues), but de-sensitize them to having a biological boy in their restroom. Some days, I just can't wait to see what progressives will come up with next. EDTA
LoL! I have two big ad banners running through the OP and totally missed it. Honda and some "cool portable multi-tool" ET
There was a male high school teacher in Virginia that was fired for refusing to use the pronouns of the transgender student’s choice:
That is the teacher Barry is referring to in his OP. Ed George
There was a male high school teacher in Virginia that was fired for refusing to use the pronouns of the transgender student's choice: https://www.nbcnews.com/feature/nbc-out/teacher-fired-refusing-use-transgender-student-s-pronouns-n946006 ET
If I am not mistaken, there was a Canadian teacher (professor?) who refused to use the transgendered pronouns. I don't know what happened to him, but I assume that it wasn't pleasant. Ed George

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