a Win for Religious Liberty

Last week, the Ninth Circuit issued a ruling prohibiting Oregon from denying adoption placements for prospective parents who refuse to promise to affirm a child’s preferred gender identity. The Circuit’s holding marks a win for parental rights, religious liberty, and parties reasonably concerned about the psychological and medical risks of social transitioning.

Jessica Bates, of eastern Oregon, is a widowed, single mother of five children. A practicing Christian, Bates felt called to adopt a pair of siblings from foster care. She applied to Oregon’s Department of Human Services (ODHS) for certification as an adoptive parent. A state administrative rule, however, required that applicants for foster or adoptive parenting agree to “respect, accept, and support” a child’s sexual orientation, gender identity, and gender expression. The rule applied regardless of whether a child for placement showed signs of gender dysphoria.

ODHS officials effectively used this rule to force applicants to agree not only to use a child’s self-selected pronouns but also to affirm any gender identity the child might adopt—even cross-sex or sexless identities—and to refrain from restricting the child’s clothing choices. Astonishingly, as one departmental training insisted, ODHS would also require parents to facilitate their child’s participation in events like Pride parades, even if such activities violated applicants’ religious beliefs.

Bates refused. She contended that her religious beliefs prevented her from using pronouns that do not correspond to the child’s sex. When an ODHS social worker asked if she would take a prospective child who identified as the opposite sex to receive cross-sex hormone injections, she responded no. But she vowed to love and support her prospective child, no matter what. “If one of my children tells me that they are gay, or that they are struggling with gender dysphoria, or that they identify as transgender,” Bates said, “I will listen to them, share my heart with them, and most of all love them and encourage them that I will continue to be there for them no matter what.”

That wasn’t good enough for Oregon. ODHS denied her adoption application, citing her failure to meet the state’s adoption standards. She sued in federal district court for a preliminary injunction, alleging that Oregon violated her First Amendment rights to free speech and the free exercise of religion. She also asked for declaratory relief that the policy was unconstitutional as applied to her.

The district court denied Bates’s motion. In response to her free exercise claims, the court wrote that she had demonstrated “a lack of understanding of the importance of providing a child with the holistic support and care required to produce well-rounded and confident adults.”

That assertion flies in the face of numerous systematic reviews of so-called “gender-affirming care,” which have found no high-quality evidence of long-term mental-health benefits and have documented a growing list of serious known and potential harms. Instead of reckoning with this body of evidence, the lower court concluded that Oregon’s policy affected Bates’s religious beliefs incidentally but was not driven by animus against them.

It likewise denied her claim that the state’s policy effectively compelled her to adopt speech with which she disagreed. The court applied strict scrutiny—the form of judicial review that almost always results in a loss for the government—because the rule served as a content-based restriction on speech. But unusually, it found that the rule satisfied this highest scrutiny because it served, and was narrowly tailored to advance, a compelling government interest.

In January of last year, the Manhattan Institute filed an amicus brief urging the Ninth Circuit to reverse the district court. The brief, like others MI has filed around the country, explains that social transition, or using a child’s preferred name and pronouns in social settings, isn’t a passive or neutral act. It’s an active psychosocial intervention with known and anticipated risks.

Far from alleviating gender dysphoria, research indicates that social transition likely cements it. While most children outgrow gender-related confusion and distress if left alone, kids socially transitioned from a young age almost never come to accept their natal sex. The district court failed to recognize these risks when it identified parents’ willingness to “facilitat[e] the child’s attendance at a Pride parade in the interest of finding an LGBTQ+ community” and “provide access to LGBTQ+ communities” as signs of compliance with Oregon’s rule.

In a two-to-one decision, the Ninth Circuit reversed the lower court’s ruling. It held, on multiple grounds, that the Oregon rule likely violated Bates’s First Amendment rights to free speech and free exercise. Without deciding the matter, it questioned Oregon’s assertion that the state’s compelling interest in protecting children entails precluding the placement of children with religious parents like Bates. “None of the studies the state cites speak to the risks associated with children residing in a home like Bates’s,” the court astutely noted. And citing the Supreme Court’s recent Mahmoud decision that requires schools to allow religious parents to opt their children out of lessons featuring LGBTQ+ storybooks, the panel wrote that many capable parents hold Bates’s religious views.

Further, the court held that the state’s blanket prohibition on placing children with parents like Bates would probably fail strict scrutiny’s requirement that the government narrowly tailor its action to meet a compelling interest. The possibility of placing a child who turns out to be gay or gender dysphoric and thus, in the state’s view, potentially harmed by Bates’s actions, “is speculative,” wrote the majority. “That is presumably even more true when it comes to the possibility that a child will require hormone shots as part of a gender transition. It is not narrowly tailored to impose on Bates an extreme and blanket rule that she may adopt no child at all based on her religious faith, for fear of hypothetical harms to a hypothetical child.”

With this decision, the Ninth Circuit has signaled to states in its jurisdiction and beyond that they cannot adopt policies informed by unproven, pseudoscientific, and ideologically driven theories to ban otherwise fit and capable parents from adoption.

Ensuring such parents can adopt is essential to foster children’s successful development. As MI noted in its brief, in 2022, 316 children left Oregon’s foster-care system without a permanent home. Many “graduate” from the system to homelessness and drug addiction.

The Ninth Circuit’s decision will make it easier for more children to find nurturing adoptive and foster homes. Oregon may appeal, but for now, common sense and the First Amendment have carried the day on the West Coast.

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