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Washington state violated court order by forcing foster parents to 'affirm' gender ID: lawsuit

Detransitioners tell 9th Circuit as it hears challenge to Oregon policy that so-called gender affirming care caused "physical harm" and "did not resolve their mental health issues or gender dysphoria."

Published: March 25, 2024 10:50pm

The Pacific Northwest has a message for foster and adoptive parents: Agree to affirm a child's self-determined "sexual orientation, gender identity, and gender expression," including using their preferred pronouns and taking them to Pride parades, or leave the program.

Washington state adopted new Sexual Orientation and Gender Identity/Expression (SOGIE) regulations after accepting a permanent injunction against the "nearly identical" Policy 6900 to settle a First Amendment lawsuit by would-be foster parents in July 2021, non-renewed foster parents claim in a new lawsuit.

Yet the Evergreen State offers exemptions to other requirements to ease placements in Washington's overburdened foster-care system, even letting prospective families discriminate by sex and mental and physical disabilities, Jennifer and Shane DeGross allege.

"Washington’s blatant disregard for our judicial system matches its disregard for the First Amendment," preventing the DeGrosses from "expressing their deeply-held religious beliefs" on the immutability of sex to a teenager with the same beliefs or a toddler who goes "to church with them just one time," according to the suit, filed by the Alliance Defending Freedom.

ADF is also the public interest law firm behind a similar Oregon lawsuit pending before the 9th U.S. Circuit Court of Appeals, which a March 5 docket entry shows will be heard this summer.

A trial judge denied a preliminary injunction against the Beaver State's rules requiring adoptive parents to accept both speech- and drug-related affirmations for gender-confused youth, prompting a wide range of friend-of-the-court briefs supporting widower Jessica Bates. 

ADF filed a reply brief for Bates Feb. 29 arguing Oregon is repeating Philadelphia's failed argument at the Supreme Court for its struck-down ban on working with foster agencies that won't certify same-sex couples.

"[T]he State says that speech is conduct, parents are medical professionals, private actors are government employees, unpaid licensees are subsidized speakers, and vague exemptions are lawful discretion. No court has accepted these theories," the brief says.

"Oregon’s position leads to unplaced children and constitutional dead-ends" and could enable states to exclude applicants "for teaching LGBT equality, advocating for affirmative action, defending critical race theory, supporting climate change, or endorsing Palestinian independence," ADF argues.

Washington promised not to enforce Policy 6900 against prospective foster parents who have "sincerely held religious beliefs regarding LGBTQ+ issues" after a court found it violated the free-exercise rights of James and Gail Blais, the DeGross lawsuit says.

The state "[m]ay take an applicant’s views on LGBTQ+ issues into account when reviewing foster family home license applications or family home study applications" but cannot "disqualify" parents based on those religious beliefs, the injunction says.

Yet Department of Children, Youth, and Families Secretary Ross Hunter, "the named defendant" in the Blais lawsuit, published a contrary statement on both the department and his own personal website several months after the injunction.

"We do not grant licenses to families that are unwilling to be accepting of a child or youth who explores their sexual orientation, gender identity, or gender expression and comes out while in their care," Hunter wrote.

DCYF then updated Section 1520 regulations to require foster parents to provide "supportive practices" to children who may start identifying as "LGBTQIA+," including by connecting a child to "resources that supports and affirms [sic]" their SOGIE and "using their pronouns and chosen name." 

A practice guide says they should display "Pride flags," take foster children to pride parades, include “LGBTQIA+ authors, musicians, and artists in your collections" and seek "supportive and affirming medical care" for the kids.

Foster parents aren't required to meet the same standards for children with different religious or spiritual practices from their own, but simply be "respectful" toward the child's practices.

"Caregivers need not categorically agree to use a child’s religious texts or to say religious prayers" or "affirm through their speech and behavior that a child’s creed or religion is true and valid," the suit says.

When the DeGrosses started their renewal application a few months before their foster license expired in August 2022, their licensing agency told them the Section 1520 revision left them "no room for compromise." 

It refused to certify they met the requirements after the DeGrosses said they were not willing to use preferred pronouns or say children can identify as the opposite sex, but haggled with DCYF to give the couple religious exemptions, to no avail, according to the suit. 

The state required them to follow the revisions "to the letter without any exceptions," and the DeGrosses learned other families had been rejected on the same basis.

ADF is seeking a permanent injunction against the revised policy, attorney's fees and nominal and punitive damages against Hunter personally for violating the DeGrosses' rights to free speech, free association, religious exercise and equal protection of the law.

DCYF told Just the News it couldn't comment on "the specifics of this ongoing legal action" but provided a lengthy statement justifying its SOGIE requirements.

"It is well-documented that children and youth who identify as LGBTQIA+ ... are 4 times more likely to attempt suicide, have suicidal thoughts, or self-harm than youth who are cis-gender or straight," it reads.

"Whether a family accepts or rejects a child’s sexual orientation, gender identity or expression (SOGIE) has a profound impact on their wellbeing, and children and youth who identify as LGBTQIA+ are over-represented among the foster care population" and could face "additional trauma" if not affirmed.

The Blais injunction recognized "we have authority to require that foster parents follow a child’s case plan," the DCYF statement says, referring to language requiring foster parents to "allow" a variety of "needs of foster children who identify as LGBTQ+ or who may so identify in the future to be met in their care." 

That doesn't mean foster parents have to "agree with or support" all its policies, the department said.

The coastal states' conservative inland neighbor is going in the opposite direction. 

Idaho asked the Supreme Court last month to stay a trial ruling that blocked its ban on puberty blockers, cross-sex hormones and the surgical removal of healthy breasts and genitals, which supporters call gender affirming care, for minors.

The 9th Circuit refused to stay the ruling, prompting a friend-of-the-court brief by detransitioners who said that gender affirming care "did not resolve their mental health issues or gender dysphoria" while causing "physical harm and increas[ing] their distress" to their "irreversibly altered" bodies.

The Supreme Court has not acted yet, three weeks after Idaho filed a reply brief to the challengers' response to Idaho's emergency application for a stay. 

The high court gave a potentially bad omen last week, refusing to hear a case against Indiana for taking a child because his parents wouldn't use his preferred pronouns and name. The Hoosier State also banned them from discussing gender identity with the boy in unsupervised visits.

Last week Idaho Gov. Brad Little (R) signed two bills with direct relevance to gender affirming care, regardless of what SCOTUS does on its minor ban.

One requires healthcare professionals to get parental consent for any "health care service" for minor children and prohibits them from hiding the "health information" of the children from parents. The other prohibits the compulsion of counselors and therapists to support "goals, outcomes, or behaviors" for clients that conflict with the professionals' "sincerely held religious, moral, or ethical principles."

Editor's note: Alliance Defending Freedom is an advertising sponsor of the Just the News podcast network, including "John Solomon Reports," where it seeks donations for its nonprofit legal work.

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