Foster Care and Gender Ideology Collide in Oregon Case

COMMENTARY: Judicial correction may be the only hope vulnerable kids have left.

Jessica Bates, of Malheur County, Oregon, with her children; ‘Bates v. Pakseresht’ is pending on a federal appeals court docket.
Jessica Bates, of Malheur County, Oregon, with her children; ‘Bates v. Pakseresht’ is pending on a federal appeals court docket. (photo: Alliance Defending Freedom)

Ideally, children are raised in a loving home with two parents whose commitment to one another has the strength that comes from the bonds of sacramental marriage. Unfortunately, life is sometimes not ideal. There are children in America whose biological parents are unable or unwilling to raise them. Pending on a federal appeals court docket is Bates v. Pakseresht, a case brought by Jessica Bates, a Christian woman from Oregon, who insists that people willing to care for needy children mustn’t have to give in to the demands of gender ideology. 

Some background: In the spring of 2022, Jessica Bates, a widowed mother of five from Oregon, began the application process to be certified to adopt from the state’s foster-care system. Applicants like Bates are required to show that they can care for a child’s general well-being, as well as agree not to discriminate against a child on the basis of a number of characteristics and help a child develop a “positive self-concept.” 

With regard to a child whose “gender identity” differs, or could differ at some point in the future, from their biological sex, Oregon demands prospective adoptive parents agree to very specific parenting decisions. 

For example, during state-directed training Bates participated in as part of the application process, she was told that she must agree to use a child’s “preferred pronouns,” take a child to events like “gay-pride parades,” and allow a child to undergo dangerous pharmaceutical interventions like puberty blockers and hormone shots.

Consistent with her Christian faith, Bates could not agree to the state’s demands. She did, however, reveal how she would parent should her child’s “gender identity” differ from their biological sex. 

For example, she would avoid using disfavored — biologically based — pronouns and instead “use only a person’s name.” Bates raised the issue with a state employee who, several weeks later, told her that she was ineligible to adopt because of her “objections to affirming a child’s transgender identity.” The official denial letter from the state similarly cited Bates’ failure to comply with state rules requiring her to agree to “support [a child’s] lifestyle or encourage any behavior related to their sexual orientation or gender identity or expression.” 

Bates filed suit in federal district court, arguing that Oregon’s policy violates her First Amendment rights to freedom of speech, association and assembly; violation of her First Amendment right to free exercise of religion; and violation of the Equal Protection Clause of the 14th Amendment. 

The district court, dismissing recent Supreme Court precedent reaffirming the Constitution’s prohibition against compelled speech and its guarantee of the free exercise of religion, denied Bates’ request for a preliminary injunction last year, claiming that she “failed to meet the threshold inquiry of whether her claims are likely to succeed on the merits.” 

Bates appealed the denial to the U.S. Court of Appeals for the 9th Circuit. I filed a friend of the court brief on behalf of four foster and adoptive parents in support of Bates. The parents credit their faith in helping them navigate the challenges of foster care and adoption.

One of the parents, Diana Johnson, has dedicated her life to children in need of a forever home. Johnson and her husband, Dave, in addition to having three biological children, adopted 14 children and fostered another 12 over the past 50 years. 

Explaining their interest in adoption, Johnson says, “We’re a Christian family, and what we saw were children of color, children who were addicted to drugs that were not being adopted. And my husband and I were very pro-life and felt very strongly that the Lord wanted us to move forward and take these kids who needed a home. And so, that’s what we did.” 

Dave, a long-serving fireman with the Syracuse, New York, Fire Department who rose up the ranks to become deputy fire chief, died three years ago. 

According to Johnson, none of the children she and Dave adopted or fostered ever expressed a gender identity different from their biological sex. She thinks that injecting gender ideology into foster care and adoption placements is “only bringing confusion to little people who have not even asked themselves this question.” 

With years of experience, she points out that these are “kids who are coming to you already disrupted from a home with problems. It’s a mess.” 

Johnson is concerned about efforts like those in Oregon to limit the homes available for placing children in need. 

“I sometimes think there’s more outreach for finding homes for animals than kids,” she says. With decades of experience caring for children whose family of origin failed to care for them, She believes that they need guidance and love to learn how to forgive their past and start over again. 

“I don’t see that in what the government is providing. I think the government is bringing confusion.” She adds: “I think they’re going to miss out on some great homes if they keep making these regulations.” 

Faith is a powerful motivation for people to serve as foster or adoptive parents. Research suggests, for example, that Christians are three times more likely to consider fostering than other Americans and twice as likely to adopt. 

According to researchers at the University of Tennessee, foster parents “who became aware [of the need for foster parents] through churches or other religious organizations fostered for more years than did the average respondent.” Faith also helps many families navigate the challenges of foster care. 

Foster parents report that “faith/church support” was one of the top three factors in successful fostering. And where foster families are connected with religious organizations, they foster an average of 2.6 years longer than those who do not.

Naomi Shaefer Riley, a noted expert on child welfare and foster care, writes that the child-welfare system in the U.S. is failing vulnerable children. Riley asks that “under such circumstances, shouldn’t the foster care system take an all-hands-on-deck approach?” 

Oregon apparently disagrees and is willing to ignore the well-being of needy children in order to curry favor among the progressive establishment. Judicial correction may be the only hope vulnerable kids have left.

Democratic presidential candidate U.S. Vice President Kamala Harris speaks to supporters during a campaign rally at West Allis Central High School on July 23 in West Allis, Wisconsin.

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