Appeals court blocks gender identity mandates in adoption: pronouns, pride parade, 'hormone shots'

Judges nominated by presidents Trump, Clinton and George W. Bush walk into a First Amendment case about compelled affirmation of gender identity and facilitation of medicalized transitions as a condition of adoption. The punchline may surprise you.

The 9th U.S. Circuit Court of Appeals on Thursday blocked Oregon's Department of Human Services from denying Jessica Bates' application to adopt the siblings she is fostering based on her refusal to honor the asserted gender identity of "hypothetical adopted children" in speech or actions, with the Trump and Clinton nominees overruling the Bush nominee.

U.S District Judge Adrienne Nelson, nominated by President Biden, denied a preliminary injunction for the widowed Christian mother of five in 2023, arguing the failure to "respect a child's LGBTQ+ identity imposes collateral harm on the child's development, safety, and physical well-being."

Nelson also determined the regulation meets the highest standard of judicial review, strict scrutiny, as the least restrictive means of achieving a compelling state interest, explicitly disagreeing with a 2020 ruling against a similar Washington policy by an Obama nominee, Judge Salvador Mendoza, whom Biden subsequently appointed to the 9th Circuit.

The ruling united free speech and religious freedom groups against the Beaver State at the San Francisco-based appeals court, as did a similar ruling upholding Vermont's revocation of foster licenses for refusal to affirm gender ideology, now under review by the 2nd Circuit. 

No 'force field against the valid operation of other constitutional rights'

The 9th Circuit majority applied strict scrutiny to the entire case, while the minority applied intermediate scrutiny to Bates's free speech claim and easy-to-meet "rational basis" standard to her free exercise claim, arguing the policy only regulates conduct and is "neutral and generally applicable."

The panel divided on whether "Resource and Adoptive Families Training," an instructor-led ODHS course that prospective parents must complete, is "purely advisory" because Oregon has not "enshrined the materials into regulations," the majority said.

"Oregon only initiated its investigation into Bates’s beliefs after she expressed disagreement with the RAFT training," which it said defines its "expectation" for adhering to the regulation that adoption applicants "respect, accept and support" the gender identity of adoptive children, said the opinion by Judge Daniel Bress, joined by Judge Michael Hawkins.

"In the context of raising children, such respect and support inevitably both restricts and compels speech," as Judge Nelson found, they said, dinging Bush nominee Judge Richard Clifton's dissent for botching the factual record and hence the correct review standards.

"The situation would be no different if the state had restricted parental speech favoring more 'progressive' views of sexuality and gender identity, while compelling speech along the lines of Bates’s more traditional understanding," according to the opinion.

The duo said 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," such that it could deny adoption based on the "political view, race, or religious affiliations" of prospective parents.

Oregon deems as unfit prospective parents who won't take young children "to events like pride parades," as ODHS explicitly demanded of Bates, which is "false and incredibly dangerous," Bates's lawyer Jonathan Scruggs of the Alliance Defending Freedom said in celebrating the ruling.

"The 9th Circuit was right to remind Oregon that the foster and adoption system is supposed to serve the best interests of children, not the state’s ideological crusade," he said.

"We are disappointed in the ruling but are reviewing to determine next steps," Oregon Department of Justice spokesperson Jenny Hannson told Just the News when asked whether the state plans to seek a full-court rehearing or direct appeal to the Supreme Court.

'Faith-based communities' can be sources of 'prejudice and rejection'

Oregon's RAFT training is far-reaching even by the standards of gender affirmation, resembling a Canadian gender studies course more than American adoption requirements.

The Bress opinion recounts its distinctives, referring to children by the LGBTQ variant "LGBTQI2-S," which is common in Canada and whose last abbreviation means "two-spirit," a modern indigenous term of disputed authenticity. 

RAFT claims "an infinite number of pronouns" exist and that prospective parents must always ask for them first. Regardless of whether their children identify as LGBTQ, parents should display "symbols indicating an LGBTQ-affirming environment" and provide books and media that celebrate LGBTQ people such as "transgender women in history."

The materials take aim at religion, claiming "faith-based communities" can be sources of "prejudice and rejection" and instructing parents not to force youth to attend religious activities "openly hostile or unsupportive of people with diverse" sexual orientation, gender identity and gender expression. 

"You do not have to choose between your faith and supporting their LGBTQ+ identity," RAFT asserts in bold, citing an increase in "affirming churches and religious groups that are providing affirming spaces to LGBTQ+ youth and their families."

'Hormone shots' or adoption refused

Adoptive parents must give children "the ability to discuss, provide, and obtain authorization for medically necessary, transition-related treatment, if desired," referring to puberty blockers, cross-sex hormones and surgeries to resemble the opposite sex that allegedly improve mental health and reduce suicides, a claim with little rigorous evidence.

"The state has not identified any other criteria or guidelines by which it assesses an applicant’s compliance" other than RAFT training, and it only "takes individualized action to deny certification to a prospective adoptive parent if the state becomes aware" the applicant disagrees with RAFT, as Bates offered that she did, the majority says.

After her ODHS certifier asked Bates whether she would take a child to get "hormone shots" and Bates called that "child abuse," the state denied her application, specifically mentioning that refusal among others to affirm a child's gender identity.

The majority repeatedly cites RAFT examples as both strong suggestions and mandates, "broadly reflective of a particular viewpoint on sexual orientation and gender identity, which parents must actively promote under Oregon’s policy."

The state's claim that it's regulating speech only "incidental to conduct" would have been "much stronger" if it "simply outlawed harassment or denigration of LGBTQ children –which Bates strongly avers she would not do," but its speech regulation "predominates," they said.

It's not at all like the upheld federal mandate on colleges to open their campuses to military recruiters as a condition of funding under the Solomon Amendment, as Oregon claimed, since Bates "does not remain free to express her views on sexual orientation and gender identity" or they are at least "severely circumscribed," the majority says.

The funding analysis is "inapt" because Bates isn't seeking funding or refusing to accept it to "get what she wants," and even funding conditions can impose unconstitutional burdens, the duo said.

"Here, it is apparent that Oregon’s policy exceeds the scope of any particular adopted child, in that it requires parents to use and refrain from using particular speech regardless of whether their child identifies as LGBTQ, while also imposing more general speech requirements for parents in their dealings with others," they wrote.