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Court hears arguments in challenge of Oregon gender identity rule

A federal judge heard arguments Wednesday in a Malheur County woman’s challenge to state adoption policies in a lawsuit that will test the balance of religious freedom and protections for transgender children. 

Jessica Bates, who lives in Vale, sued the state in federal court in April, after the Oregon Department of Human Services blocked her from adopting two children. Bates discovered during a training for prospective parents that state rules require adoptive parents to support and respect their children’s sexual orientation and gender identity. 
The adoption process stopped after Bates told a state worker her Christian values prevented her from following that rule because she believes marriage is between a man and a woman and that God created people to embrace their gender, not change it.

Now, Bates is seeking a court order that would overturn the administrative rule and allow her to continue the adoption process. A widow with five children, Bates wants to adopt while her children are still home and can bond with new siblings.

On Wednesday, U.S. District Judge Adrienne Nelson heard arguments from attorneys for Bates and the Oregon Department of Human Services on whether she should grant a preliminary injunction that allows Bates to continue the adoption application process while the case progresses in court. A decision on that matter is pending. 

Attorneys for Alliance Defending Freedom are representing Bates. The Arizona-based organization  founded by conservative Christians in the 1990s takes a variety of free speech and religious freedom cases and has led or participated in several high-profile cases targeting LGBTQ+ and reproductive rights. 

Johannes Widmalm-Delphonse, one of the organization’s attorneys, spoke during the one-hour hearing about the need for Oregon’s foster children to be adopted. 

“She has a bedroom waiting for children in the system,” Widmalm-Delphonse said. 

Widmalm-Delphonse said the blanket prohibition on his client is unfair because it stops her from qualifying to adopt a child through the state agency. He noted the state can and does play a role in placing children in homes that are a good fit for them and the agency could do so for Bates. 

“This sort of policy makes little sense when foster children are sleeping in hotel rooms,” he said.

Widmalm-Delphonse said Bates would not be comfortable taking a child to a gay pride parade or calling them by their preferred pronouns, saying that is unconstitutional and would compel her to engage in speech she opposes on religious grounds.

“She believes people are made in the image of God,” he said.

Widmalm-Delphonse said his client can love any child but won’t follow dictates that run contrary to her religious beliefs.

He noted the case is not about any particular child at this point and Bates is excluded from continuing the adoption process simply because of her beliefs. 

“Oregon doesn’t even let her get in the front door,” he said.

Thomas Castelli, an Oregon Department of Justice attorney, urged the judge to not grant a preliminary injunction. 

He said the state has a duty to craft rules for the children in Oregon’s custody, who often experience trauma.

Those rules, which also apply to foster parents, include actions like not traveling out of the state or associating with criminals, even though those are allowed under the law, he said.

“There’s no constitutional right to be a foster parent,” he said.

Castelli argued that Bates would not be forced to change her beliefs if she followed the rule, noting it simply requires her to support and accept the child’s sexual orientation and gender identity.
“The rule itself doesn’t say you must attend a pride parade,” he said. “Simply put, the rule just requires acceptance, respect and support – not advocating.”

Accepting, respecting and supporting doesn’t prevent other free speech activities, Castelli said. 

About the policy 

The rule only applies to adoptions through the Oregon Department of Human Services. It does not apply to private adoptions, such as through nonprofit organizations.

It requires adoptive and foster parents to: “Respect, accept and support the race, ethnicity, cultural identities, national origin, immigration status, sexual orientation, gender identity, gender expression, disabilities, spiritual beliefs and socioeconomic status of a child or young adult in the care or custody of the Department and provide opportunities to enhance the positive self-concept and understanding of the child or young adult’s heritage.”

The state rule was crafted in 2018 after a Secretary of State audit of the state’s child welfare system found children had painful experiences when their identities were not embraced in homes.

Jake Sunderland, a spokesperson for the Oregon Department of Human Services, declined to comment on the lawsuit, but issued a statement defending the policy. 

“At a time when gender diverse people, policies, and laws are under attack, it is important to reinforce our values and practices related to the children and families we serve,” the statement said. “We are committed to creating a safe and supportive environment for all children and young people, regardless of their gender identity. Gender inclusive policies provide a range of benefits including improved mental health, safety and well-being.”

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