Washington gender ideology mandate in foster care likely unconstitutional: judge

Federal courts are slamming the brakes on top-down efforts to mandate and inhibit gender ideology on impressionable children, ruling against the Trump administration and a prime antagonist days apart in lawsuits on regulatory procedure and free speech rights.

Washington state's requirement that Christian foster parents Shane and Jennifer DeGross affirm the gender confusion of any children placed with them as a condition of keeping their "unrestricted" foster license plausibly violates the First Amendment, U.S. District Judge David Estudillo wrote, greenlighting the core of their lawsuit against the Evergreen State.

The President Biden nominee cited the 9th U.S. Circuit Court of Appeals' ruling against Oregon last year for requiring foster mother Jessica Bates, as a condition of adopting her foster children, to honor the asserted gender identity of "hypothetical adopted children" in speech and action, including facilitation of medicalized gender transitions.

"The situation would be no different if the state had restricted parental speech favoring more ‘progressive’ views of sexuality and gender identify, while compelling speech along the lines of [the DeGrosses’] more traditional understanding," Estudillo wrote, inserting the DeGrosses into a quote from the 9th Circuit ruling to show the Northwest cases' parallels.

An Oregon-led coalition of Democrat-run states prevailed before another Biden nominee days earlier, in their Administrative Procedure Act challenge to Health and Human Services Secretary Robert F. Kennedy Jr. for threatening the federal funding of medical providers who give puberty blockers, cross-sex hormones and surgical interventions to gender-confused minors.

"Unserious leaders are unsafe," U.S. District Judge Mustafa Kasubhai wrote in approving the states' motion for summary judgment, repeatedly denouncing Kennedy beyond saying he violated notice and comment rules. The case shows how a "leader’s wanton disregard for the rule of law causes very real harm to very real people," he wrote.

Kasubhai praised so-called gender-affirming care as "life-saving" for children despite a three-decade Finnish study that found it worsened the mental health of adolescents and young adults. 

U.S. District Judge Adrienne Nelson, overturned by the 9th Circuit, also portrayed Bates as a physical threat to children for not respecting their "LGBTQ+ identity."

Several years earlier, Children's Hospital Los Angeles pediatrician Johanna Olsen-Kennedy found no mental-health improvement for gender-confused youth on blockers and hormones, but hid the results of her taxpayer-funded study for fear they would set back the cause.

The Trump administration is nonetheless plowing ahead against gender ideology in the absence of definitive guidance from the Supreme Court, with its Federal Trade Commission reportedly making good on its promises last summer to crack down on gender-affirming care for minors as consumer and billing fraud.

Medical advocacy group Do No Harm recently asked the FTC to also open an investigation of the American Psychological Association for misleading practices: allegedly contradictory positions on gender-affirming care for minors intended to protect itself from regulatory action while pacifying the "radical gender activists" who captured it.

No 'emergency placements,' no fosters over age 5

The DeGrosses sued Washington state two years ago, alleging its adoption of new "Sexual Orientation and Gender Identity/Expression" regulations (SOGIE) in Policy 1520 flouted a court order in which the state accepted a permanent injunction against "nearly identical" Policy 6900 to settle an earlier First Amendment lawsuit by would-be foster parents.

Their license renewal was denied after serving as foster parents for more than nine years because of their religious objections to "socially or medically 'transitioning' children," their lawyers at the Alliance Defending Freedom said. Judge Estudillo's ruling says the DeGrosses refused to use preferred pronouns or "affirm that a child could transition" to the opposite sex.

The Washington State Department of Children, Youth & Families offered them a restricted license based on their religious objections after they sued: placement of youth ages 2-18 in their home for short-term "respite care," and ages 2-5 for foster care.

Their licensing agency must "conduct a thorough review of a child’s case plan" before placement, must not make "emergency placements" with the DeGrosses and must "defer a recommendation for adoption until there is an identified child." 

The child's caseworker must also verify "there are no known gender diverse identity considerations," and the DeGrosses must complete "LGBTQIA+ Basics for Supporting Youth" training in their first year of the restricted license.

DCYF justified the requirements based on "LGBTQIA+" youth being "over-represented among the foster care population" and protecting them from "additional trauma when placed out-of-home into foster care."

Unlike the Oregon case, in which the 9th Circuit emphasized the Beaver State explicitly required would-be foster parents to consent to medicalized gender transitions for placed children, the DeGrosses' amended complaint pointed to fuzzier language in Washington's rules.

Policy 6900 formally required DCYF staff to support youth "seeking gender affirming medical services" but "in practice it was applied to prospective foster parents as well," the couple said. 

DCYF's Home Study Practice Guide, which interprets Policy 1520, includes sample interview questions about dealing with LGBTQIA+ youth including, "How will you seek supportive and affirming medical care for the child or youth in your care?"

Disavow religious beliefs or accept second-class status

Judge Estudillo agreed that the DeGrosses have plausibly alleged Policy 1520, like Policy 6900, is "not neutral toward religion," referring back to U.S. District Judge Salvador Mendoza's 2020 ruling for Seventh-day Adventists James and Gail Blais when DCYF refused to grant them a foster license for their great-granddaughter under Policy 6900.

"Closer inspection of the regulations and policies at issue reveals that, in practice, they work to burden potential caregivers with sincere religious beliefs yet almost no others," Mendoza wrote and Estudillo quoted in his ruling.

Citing the 9th Circuit in Bates, the judge said the DeGrosses have plausibly alleged Policy 1520 is facially unconstitutional because it "draws distinctions based on the message the speaker conveys," restricting what they can say about SOGIE "while requiring speech that aligns with the state’s perspective."

Their as-applied challenge is also going forward because of the restrictions DCYF applied due to their refusal to use a placement's preferred pronouns and name, Estudillo said. It has "forced the DeGrosses to choose between forfeiting their freedom of speech to obtain an unrestricted license, or upholding their beliefs surrounding SOGIE" for a "less-favorable license."

Invoking the SCOTUS precedent Trinity Lutheran, which struck down a Missouri policy that denied playground-resurfacing grants to religious organizations, the judge said the DeGrosses plausibly allege DCYF's policy puts them in "an unfair predicament: they may obtain an unrestricted foster care license but only if they disavow their religious beliefs."

The policy also may not be "generally applicable," because DCYF concedes Policy 1520 gives it discretion "to issue waivers or make exceptions as appropriate" – the DeGrosses sought such a waiver – but doesn't say "what criteria are considered" when a licensing division senior administrator decides whether to approve a waiver, Estudillo said.

The judge gave the state one big win, tossing former DCYF Secretary Ross Hunter as a defendant in his personal capacity because he had already left the department when the DeGrosses submitted a license renewal application. (Other individual defendants were named in their official capacities.)

DCYF did not answer queries for its response to the ruling.