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'Rank misdirection'? Indiana justifies taking child from parents who won't use preferred pronouns

If Supreme Court doesn't rebuke Indiana, "all child welfare cases will become unreviewable when the child turns 18," parents of gender-confused child who's now an adult warn. Oregon's gender-affirming adoption rules under review as well.

Published: February 22, 2024 11:00pm

Updated: February 23, 2024 10:50am

Critics of so-called gender affirming care often point to the reported association between rapid-onset gender dysphoria and eating disorders, both of which overwhelmingly target young females distressed by their changing bodies and have strong social components.

A rush to diagnose "gender distress" in children tends to overshadow other mental health problems that may contribute to gender confusion, according to an ongoing external review of the U.K.'s troubled gender clinic for children, which is scheduled to close this spring.

The U.S. Supreme Court announced Wednesday it's considering for the third time whether to take a case on the intersection of these mental health conditions and parental rights. It comes from an unlikely place: the Republican-dominated Hoosier State.

Mary and Jeremy Cox are urging the high court to hold the Indiana Department of Child Services accountable for removing their now-adult male child from their home following reports that the faithful Catholics didn't use the child's preferred female pronouns and name.

DCS prohibited the Coxes from discussing the 16-year-old's gender identity during unsupervised visitation on the grounds that it would make the boy's anorexia worse, and continued the gag order even after dismissing the child's abuse allegations.

The 9th U.S. Circuit Court of Appeals is considering something of a prequel: whether Oregon can refuse adoption to families who will not affirm a child's gender identity, including refusal to give them "hormone shots" if the Beaver State so requests.

A trial court denied a motion for preliminary injunction by widow Jessica Bates, a mother of five who seeks to adopt foster siblings under age 10, against the Oregon Department of Human Services, which requires adoptive parents to accept both speech- and drug-related affirmations.

Other litigation against governments that punished speech related to biological sex has borne fruit recently.

Iowa's Linn-Mar Community School District "has rescinded and will not reinstate" a policy that prohibits "intentional and/or persistent refusal by staff or students to respect a student’s gender identity," under its settlement with Parents Defending Education, filed in court Wednesday.

The district also agreed to pay PDE $20,000. The 8th Circuit issued a preliminary injunction against the policy last fall, finding it's likely too vague to be constitutional. 

The historically black community college St. Phillips in Texas also rehired a biology professor it fired based on secret complaints that followed his lesson about the human sexual binary, which prompted a few students to walk out, according to his lawyers.

First Liberty Institute, which had filed an Equal Employment Opportunity Commission complaint, said it reached a "favorable settlement" under which professor Johnson Varkey will be back in the classroom this fall. It declined to show Just the News the settlement.

In an opposition brief at SCOTUS this month, Indiana Attorney General Todd Rokita, a staunch culture warrior of the right, argues the Coxes' case against the state's Child Services agency is moot since "A.C." turned 18.

But Rokita insists the parents' views on transgenderism were irrelevant to the child's removal, even as Rokita acknowledges the agency opposed the boy's returning to the parent out of fear that "the eating disorder was fueled in part by A.C.’s continued disagreement" with parents over identifying as a girl.

The brief repeatedly passes the buck to Indiana courts including the trial judge, who said disagreement over gender identity, by itself, is "not a reason to remove a child from the home" and expressly encouraged gender identity discussions in court-ordered family therapy.

The Coxes, represented by the Becket religious liberty law firm, accuse the state of "rank misdirection" by conflating their responses to the proposed removal of A.C. and the child receiving treatment to prevent "self-endangerment" from anorexia.

Under the court decision DCS sought, "threatening self-harm allows a child struggling with gender identity to swap out loving (but non-transition-affirming) parents for a transition-affirming home selected by ideologically captured state officials," they said in a reply brief Feb. 15.

The case is an "excellent vehicle" to legally resolve when "can the state muzzle parental speech and remove a child from the home of admittedly fit parents," since Indiana absolved the Coxes of abuse allegations yet withheld A.C. "over an ideological dispute," they said.

If the high court does not tackle Indiana's mootness argument, "all child welfare cases will become unreviewable when the child turns 18," the brief says – a "textbook" example of governments circumventing judicial review despite no indication they'll change behavior.

The mother of a girl who killed herself after adopting a male identity asked SCOTUS for permission to file a friend-of-the-court brief supporting the Coxes last fall. She says Indiana objected "because they received nine days’ notice instead of ten," as required by a federal rule.

Yaeli Martinez became "Andrew" after the Obama administration coerced the child's California school district in 2013 to facilitate students' social transitions to the opposite sex, Abigail Martinez tearfully told a Heritage Foundation event in 2022.

The Department of Children and Family Services removed Yaeli from Abigail's home, banned the devout Christian mother from talking about God on supervised visits, and put Yaeli on cross-sex hormones without therapy, according to Abigail. Yaeli stepped in front of a train at 19.

State courts coercing parents to "affirm" or lose custody of their children "create a harrowing split with other states which have outlawed gender-transition treatments for minors," says Martinez's brief, filed by First Liberty. 

Yaeli's former principal scolded the teen's mother for not calling her "Andrew" at the hospital after the teen's suicide attempt, the brief says. 

"Disseminating such alarmist messages hurts the majority of trans-identified youth who are not at risk for suicide" and those who "may forgo evidence-based suicide prevention intervention in the false hopes that transition will prevent suicide," an accompanying footnote says.

In the Oregon case, U.S. District Judge Adrienne Nelson wrote Nov. 14 that Bates' promise to "love and support" adopted children regardless of their gender identity does not mean "the child will feel loved and supported."

Failure to "respect a child's LGBTQ+ identity imposes collateral harm on the child's development, safety, and physical well-being," said the President Biden nominee, who asks parties to let "diverse attorneys" argue cases in her court.

The Alliance Defending Freedom filed its opening brief on behalf of Bates last month, soon followed by supportive friend-of-the-court briefs from Christian, Jewish, Muslim, conservative and free speech groups, 19 GOP-led states and the Arizona Legislature, and human sexuality and law professors.

Americans United for Separation of Church and State and the Freedom From Religion Foundation filed briefs this month in support of Oregon. A date for oral argument hasn't been set yet.

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