Natural law and transgender

Natural law and transgender concerns the position of natural law concerning transgender "rights" and demands.

Virginia Supreme Court (2023)

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[N]atural rights were historically understood as unalienable because they are inherent in what it means to be human. Such rights preexisted the social contract and were not created by civil government. The Founders keenly appreciated this distinction, particularly when discussing constitutional rights. The right to religious liberty, as Jefferson's Act declared, was a "natural right" bestowed by the "Almighty God" and not by any assembly of mortal men. Code § 57-1. This ancient belief has fared well in Virginia over the last two centuries. As recently as 2016, the General Assembly reaffirmed its view that religious liberty is one of the "natural and unalienable rights of mankind and this declaration is the policy of the Commonwealth of Virginia." Code § 57-2. A natural-law right (such as religious liberty) should be distinguished from a mere "civil capacity" recognized in the social contract of lesser man-made laws (such as the right to make and legally enforce a contract). We illustrated this point in Perry, a case in which we held that a trial court had violated a witness's religious liberty by "allowing [a] witness to be questioned [by a prosecutor] on his voir dire touching his religious opinions." Perry v. Commonwealth, 44 Va. (3 Gratt.) 632, 645 (1846). The right to testify, Perry explained, was not a natural-law right inherent in any religious practice or belief. The inability to testify because of proscribed opinions was a mere "civil incapacity" that comes "[f]rom the law" promulgated by the "civil institutions of the country." Id. at 643-44. Even so, it could not be said that depriving the witness of his man-made right to testify did not violate his natural-law right to religious liberty. To the contrary, we declared, "the Constitution says that religious opinions shall not lessen 'civil capacities.'" Id. at 644. Perry was making the point that the constitutional right to religious liberty in the Commonwealth of Virginia protects not only core attributes of religion (beliefs and practices) but also wholly non-religious civil capacities that are not derived from natural law.

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Vlaming v. W. Point Sch. Bd., 895 S.E.2d 705, 727-28 (Va. December 14, 2023) (footnoted omitted).

Accordingly, the Virginia Supreme Court held in favor of a teacher who had been fired for refusing to refer to a transgender student by his preferred pronoun:

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Viewing Vlaming's allegations in their most favorable light, we hold that his "civil capacity" as a tenured public employee constituted a right that comes "[f]rom the law" adopted by the "civil institutions of the country," id., and, as such, could not be diminished or affected by Vlaming's religious opinions or beliefs. Applying settled principles of law, Vlaming had an intangible property interest in his continued employment and a corresponding right not to be terminated without just cause. His public teaching contract was not terminable at will, see J.A. at 5, 42, and statutory provisions protected his legal right not to be fired or suspended from his job without just cause.

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Vlaming v. W. Point Sch. Bd., 895 S.E.2d 705, 728 (Va. 2023) (footnotes omitted).