Federal appeals court rules that Oregon’s LGBTQ foster care safeguards violate free speech

By SHAANTH NANGUNERI/Oregon Capital Chronicle

A federal appeals court has granted a Malheur County woman’s request to halt Oregon’s policy requiring adoptive parents embrace their child’s sexual or gender identity, urging the state to implement a less prescriptive approach to protecting some of the foster care system’s most vulnerable youth.

The ruling last week from the 9th Circuit Court of Appeals strikes down a November 2023 decision by U.S. District Judge Adrienne Nelson, who rejected the woman’s original request to stop the policy on the grounds that denying LGBTQ+ identity creates “collateral harm on the child’s development, safety, and physical well-being.” Studies have shown that LGBTQ+ youth are overrepresented in the foster care system, making up to one-third of existing cases.

The recent case stems from an April 2023 lawsuit against the Oregon Department of Human Services brought forth by Jessica Bates, a widowed mother of five from Vale who says she wants her current children to have more siblings. Bates in her suit contended that her Christian religion and unwillingness to take a young adopted child to get hormone injections or to a Pride parade should not have precluded her from state-backed adoption.

“From using preferred pronouns to facilitating gender-related hormonal treatment, Oregon’s policy directs Bates to go against her religious commitments by its requirements of word and deed,” wrote Appellate Judge Daniel A. Bress, an appointee of President Donald Trump. “The state’s suggestion that Bates is not burdened because she can continue to hold her own religious views reflects an incomplete understanding of the Free Exercise Clause.”

Judge Michael Daly Hawkins, appointed by former Democratic President Bill Clinton, joined Bress in the 2-1 opinion. Judge Richard R. Clifton, appointed by former Republican President George W. Bush, dissented.

The ruling highlights the extent to which Oregon has led the nation on the issue of foster care protections for LGBTQ+ youth. The majority opinion points to other similarly-intended policies they would find constitutional, such as a Biden administration rule establishing LGBTQ-friendly care providers without mandating participation or anti-harassment laws.

Jenny Hansson, a spokesperson for the Oregon Department of Justice, said the department is disappointed in the ruling but is still evaluating next steps. Adriana Taylor, a spokesperson for the Oregon Department of Human Services, said the agency was reviewing the ruling and does not have further comment.

The majority opinion cites the June U.S. Supreme Court case of Mahmoud v. Taylor, in which religious parents were found to have their First Amendment rights violated when their school district refused to allow them to opt their children out of course materials they found offensive. The judges reviewed pages of training from the human services department, seeing mandated viewpoints in directives for parents to respect “Hir/Zir pronouns” and disputing Oregon’s lawyers’ arguments that the state’s broader policy wasn’t tied to one specific religion or community.

“Adoption is not a constitutional law dead zone,” Bress wrote. “And a state’s general conception of the child’s best interest does not create a force field against the valid operation of other constitutional rights.”

In a statement after the ruling, the Arizona-based Alliance Defending Freedom, a conservative Christian legal advocacy group that represented Bates, sharply criticized Oregon for promoting “dangerous ideology to young kids.”

“Every child deserves a loving home, and children suffer when the government excludes people of faith from the adoption and foster system,” said ADF Senior Counsel and Vice President of Litigation Strategy Jonathan Scruggs. “Jessica is a caring mom of five who is now free to adopt after Oregon officials excluded her because of her common-sense belief that a girl cannot become a boy or vice versa.”

Original 2018 policy in limbo

Bates’ lawsuit against Oregon’s Department of Human Services traces back to a 2018 policy adopted to better support the inclusion of LGBTQ+ foster youth, who have reported traumatic experiences of rejection from their original and host families. The policy requires that adoptive and fostering parents “respect, accept and support” their child’s sexual orientation, gender identity, gender expression and spiritual beliefs, next to a list of protected other categories.

Auburn Marie, development director for the Portland-based Basic Rights Oregon, among the largest LGBTQ advocacy groups in the state, called the decision troubling. Queer and transgender youth in the foster system are already often not welcomed into their families of origin, she said, adding that placement in a hostile home often leads to negative outcomes for mental health and personal success.

“It’s just really devastating and sad that a person would not be able to accept a person, especially a child, the way they are and the way that they identify,” she said. “These kids deserve more than anything to be in affirming homes that welcome them just the way they are.”

The case also tested the boundaries between parental rights over youth, free speech, LGBTQ+ protections and religious liberties. One major nonpartisan national free speech group filed an amicus brief in favor of Bates’ argument in January last year, seeing more strength in efforts like Oregon Foster Children’s Bill of Rights, which protects an individual’s right to determine and express gender and sexuality for themselves.

“The things Oregon’s rules require prospective adoptive parents to pledge unconstitutionally compel them to express specific viewpoints with which they may disagree,” Ronnie London, general counsel of the Foundation for Individual Rights and Expression, said in a statement. “There are other viable, less restrictive means to support LGBTQ children in foster care, as FIRE argued.”

• Oregon Capital Chronicle is a nonprofit Salem-based news service that focuses its reporting on Oregon state government, politics and policy.