PORTLAND, Ore. — An eastern Oregon mother who sued the state after being denied foster children due to her views on LGBTQ+ identities had her case appear before a federal judge in Portland on Wednesday.
While the judge did not deliver a decision in the case this week, the outcome could reshape Oregon's requirements for foster parents going forward.
Jessica Bates is a single mother with five biological kids. Her husband passed away several years ago. She said that she was listening to the radio one day when she felt a calling from God to adopt — later deciding to adopt two children from Oregon's foster care system, a pair of siblings under the age of 9.
When Bates went to Oregon's Department of Human Services to start the process toward becoming a foster parent, she found out in a training class that she'd have to support and affirm LGBTQ+ children; using their pronouns and chosen names, letting them dress in the way they're most comfortable, and facilitating their corresponding medical care — including gender-affirming care, if necessary.
Bates told the DHS worker handling her application that she wouldn't comply with that requirement, writing "I cannot support this behavior in a child. I have no problem loving them and accepting them as they are, but I would not encourage them in this behavior. I believe God gives us our gender/sex and it's not something we get to choose."
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This response resulted in Bates' application being denied. So she filed a lawsuit claiming that the state is discriminating against her Christian beliefs and violating her First Amendment rights by forcing her to use pronouns with which she does not agree.
In court this week, Bates' lawyers asked that the DHS requirement regarding LGBTQ+ kids be suspended with an injunction so that Bates can continue the foster process while the lawsuit plays out. They argued that Bates wants to bring the foster children into her home soon so that her older kids can bond with them.
Bates is represented by the Alliance Defending Freedom, a Christian law firm and advocacy group that often takes on cases against LGBTQ+ rights.
"Just like many people of faith, they are called to care and love for children," said ADF attorney Jonathan Scruggs. "That's all Jessica wants. She's totally fit to be a parent and we need more parents in the foster and adoption system, not fewer. And Oregon's law is just unconstitutional. It's categorically excluding parents from the door because of what they believe and what they want to say, and that's wrong. Like I say, Jessica just wants to care and love for children."
Bates' lawyers have a prime target in Oregon's child welfare system. They argue that there are thousands of kids in Oregon's foster care system without a safe home, which the state will have difficulty pushing back against. In late July, a federal judge blasted Oregon DHS for its continued practice of keeping foster kids in hotel rooms and offices against prior court orders, which the state says is due to a lack of capacity in more appropriate settings.
In that case, U.S. District Court Judge Michael McShane took the unusual step of appointing an outside expert to oversee DHS, saying that the state's excuses had "become nothing more than a stale mantra" and that the court had "lost faith in ODHS' ability to end this entrenched policy on its own."
Bates' lawyers say that she's ready now to provide a home for two kids in the system, assuming she's allowed to get certified.
In court documents, Bates argued that she tried to request children who are not LGBTQ+. DHS told her that it doesn't work like that — a child's understanding of their identity can change, and she needs to be ready to support her child regardless.
"Resource parents and adoptive parents must demonstrate that they are capable of, and willing to, place the interests of the child above their own," DHS wrote in a court filing. "Plaintiff (Jessica Bates) admits that she is not able to do that with respect to LGBTQIA2S+ children."
The judge in the case, Adrienne Nelson, said she wants to know whose rights take priority — the parents or the kids in foster care. She said she'll decide whether to block the rule that says foster parents have to support LGBTQ+ identities; but like many things in federal court, a timeline on the ruling is uncertain.