Solidly Democratic states are coming to the realization that excluding foster-care applicants based on their refusal to treat children as the opposite sex may not be a wise choice.  

Vermont gave up its policy of scrutinizing would-be and current foster parents' religious beliefs for inconsistency with gender ideology to settle two First Amendment lawsuits before the 2nd U.S. Circuit Court of Appeals could rule, issuing sweeping new guidance last week that protects applicants from violating their conscience to foster children.

It's a big win for two public interest law firms representing three sets of parents, Alliance Defending Freedom (ADF) and the Center for American Liberty (CAL), founded by Justice Department Assistant Attorney General for Civil Rights Harmeet Dhillon.

Last summer, a split 9th Circuit panel blocked Oregon's denial of widow Jessica Bates's application to adopt the five siblings she's already fostering based on her refusal to honor the asserted gender identity of "hypothetical adopted children" in speech or actions, including facilitation of medicalized transitions.

Outside of courtrooms, the issue got a harsh spotlight Tuesday night in President Trump's State of the Union address, which tore into legal systems that take children away from their homes, or refuse to return runaways, for failure to affirm their gender identity.

Detransitioner Sage Blair and her grandmother, Michele, who with her husband adopted the girl from foster care at age 2, attended the address at Trump's invitation. They are represented by the Child and Parental Rights Campaign (CPRC).

A split 4th Circuit panel reinstated Michele Blair's "deliberate indifference" claims against Virginia's Appomattox School District last summer for socially transitioning 14-year-old Sage without telling the Blairs, doing little to stop the resulting harassment she faced from male students and pressuring Sage to recant her harassment claims. 

The girl ran away as a result, kidnapped and sex-trafficked, rescued by the FBI and then, owing to public defender Aneesa Khan's complaint that the Blairs wouldn't treat Sage as a boy, placed in a group home with teenage boys where Sage was assaulted again. (Senior Judge Norman Moon dismissed Khan as a defendant two years ago.)

Trump marveled that "we're even speaking about things like this," blaming "numerous states" for hiding social transitions from parents. "But surely we can all agree no state can be allowed to rip children from their parents' arms and transition them to a new gender against the parents' will. … We must ban it, and we must ban it immediately."

Michele Blair told Fox News she was "so grateful that a light has been shown on this dark topic because it’s happening to so many children like Sage." If the school had told her Sage was being "horribly bullied," rather than "glorified the fact" that she identified as a boy, "I could have saved her a lifetime of nightmares."

The reinstated case, transferred to Magistrate Judge Kailani Memmer, hasn't moved since November, according to the docket.

"Upon winning the appeal & because the defendants never formally answered the original Complaint," CPRC filed an amended complaint in Sage's name now that she's an adult, a spokesperson wrote in an email. The parties are now waiting for Memmer's ruling on their competing motions.

CPRC founder Vernadette Broyles told Fox News the lawsuit is being further amended to include a religious free exercise claim on Michele Blair's behalf.

Preferred pronouns, 'particular vocabulary' not required

Vermont's gender-ideology mandate in foster care prompted a surprising coalition in opposition, with religious liberty, gay rights and pro-drag groups urging the 2nd Circuit to overturn a President Obama-nominated district judge who refused to block the mandate based on disputed research about positive youth outcomes from gender affirmation.

State officials filed a joint stipulation of dismissal Friday with parents Brian and Kaitlyn Wuoti and Michael and Rebecca Gantt, represented by ADF, whose views on sexuality and gender identity cost them their licenses after fostering children for eight years each and adopting several fosters. Each party will pay its own attorney's fees.

Vermont's Department of Children and Families issued new "practice guidance" Feb. 18 that specifies the "sincerely held personal, cultural, religious, moral, or philosophical beliefs" of applicants – going much further than the religious beliefs invoked by the Wuotis and Gantts – "shall not be considered in the licensing process."

The guidance also specifies applicants do not have to endorse or affirm "specific identities" or use "particular vocabulary, prescribed language, or preferred pronouns related to gender identity, sexual orientation, or identity expression." The plaintiffs can "freely reapply for their licenses" without facing the "previous grounds for revocation."

Vermont isn't opposing the plaintiffs' motion to vacate Judge William Sessions' denial of a preliminary injunction. 

A proposed final judgment says the guidance prohibits Vermont from "taking any adverse action against Plaintiffs because they believe, seek to respectfully and noncoercively express, or intend to live, parent, and make day-to-day caregiving decisions consistent with their sincerely held religious beliefs" that sex is limited to heterosexual marriage and people should live "consistent with their biological sex."

It also prohibits Vermont from requiring parents "to express agreement with any specific terminology, identity frameworks, or expressive practices as a condition of licensure, so long as their conduct remains respectful, non-coercive, and consistent with safety requirements."

The state "in good faith" can consider their "sincerely held religious beliefs on sexual orientation, gender identity, and gender expression to make individual placement decisions based on the best interests of a child who identifies as LGBTQ+ or considers themselves an ally thereof," as long as they aren't "categorically disqualif[ied]" for a particular placement.

"No parent should be forced to lie to a vulnerable child about who they are, much less promote irreversible and life-altering procedures that don’t have any proven health benefits," ADF Senior Counsel Johannes Widmalm-Delphonse said.

The practice guidance is also included in CAL's settlement with Vermont officials on behalf of plaintiffs Melinda Antonucci and Casey Mathieu. 

They lost their license for "expressing their unwillingness to assist with the social and medical transitioning of a potential transgender foster child," following scrutiny for Antonucci's Facebook post calling on the local school district to tell parents before socially transitioning their children, Sessions wrote in greenlighting part of their case a year ago.

The state agrees the guidance prohibits officials from "engaging in any formal or informal practice of evaluating foster parent applicants’ protected speech, viewpoints, or religious beliefs regarding sexual orientation, gender identity, or related issues as a condition of licensure."

They may not deny, revoke or delay licensure for "refusal to affirm, endorse, or adopt any particular views regarding gender identity, sexual orientation, or related ideological concepts" or condition licensure on "speculative or hypothetical future scenarios involving a child’s gender identity, 'gender-affirming' medical care, or gender expression."

The guidance also prohibits "considering placement-specific compatibility factors at the foster parent licensing stage as a basis for licensure determinations, except as expressly authorized," or "retaliating against foster parents or foster parent applicants for engaging in protected speech or for asserting constitutional or statutory rights related to foster care licensure."

A proposed judgment lists a broad range of speech on sexual orientation and gender identity that Vermont cannot use to evaluate eligibility for fostering or renewing licenses.

It cannot consider the plaintiffs' "protected speech, religious beliefs, or viewpoints," condition licensing on affirming "ideological or value-based positions" or require "ideological or value-laden speech" from them. Each party will pay its own attorney's fees.

"This case was never about denying care to anyone" but rather "stopping the government from using its licensing power to coerce speech, penalize dissenting viewpoints, and drive good families out of foster care at a time when children desperately need placement options," CAL lead attorney Josh Dixon said.