Amicus Brief: Bates v. Pakseresht

Jessica Bates is a widow and single mother of five children who resides in eastern Oregon. She felt called to adopt a sibling pair and applied to Oregon’s Department of Human Services to be certified as an adoptive parent. State regulations require applicants to “respect, accept, and support” a child’s sexual orientation and gender identity, however, which Ms. Bates learned required applicants to agree to use a child’s self-selected pronouns and to take a child to events like Pride parades. She expressed her willingness to accept any child into her home, but stated she could “not encourage them in this behavior” because of her religious beliefs. An Oregon social worker then asked if she would take a hypothetical child to receive cross-sex hormone shots. When Ms. Bates responded that she would not, DHS denied her adoption certification.

Ms. Bates filed a federal lawsuit, arguing that the department’s denial of her application violated her First Amendment speech and religion rights and her Fourteenth Amendment rights to equal protection under the law. The district court denied her motion for a preliminary injunction, holding that (1) the policy was neutral, generally applicable, and did not tread on historical protections for religious speech, and (2) while the policy compelled and restricted Ms. Bates’ protected speech, Oregon had carried its burden to show the policy satisfied strict scrutiny, citing a handful of surveys of LGBT youth to suggest that (a) LGBT children are disproportionately represented in foster care, and (b) rates of depression, suicidality, and other mental health issues are correlated with children growing up in homes that were not “affirming” of the child’s identity.

Now on appeal to the Ninth Circuit, the Manhattan Institute has filed an amicus brief, updating three we previously filed in similar cases that present medical research showing that social transition is not a neutral act but an active intervention. The district court failed to understand the benefits and risks of social transitions and other mental-health aspects of gender affirmation.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

John Ketcham is a fellow and director of state and local policy at the Manhattan Institute.

Leor Sapir is a fellow at the Manhattan Institute.

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