By Joshua Arnold

Indiana parents Mary and Jeremy Cox have asked the U.S. Supreme Court to vacate lower and appellate court rulings that removed their teenage son from their home. The state’s Department of Child Services (DCS) removed him not because the parents were abusive or negligent, but because their Catholic beliefs would not allow them to affirm his desire to pursue a gender transition. “Indiana found the parents fit but still removed the child over an ideological dispute,” their Becket Fund lawyers argued in a brief filed February 15, “substituting the judgment of the state for that of admittedly fit parents.”

“If this can happen in Indiana, it can happen anywhere,” declared Becket Fund Vice President and Senior Counsel Lori Windham. “‘Nearly every State has a statute similar’ to the CHINS-6 procedure Indiana leveraged here,” noted the brief. “The decision below thus paves the way for any of these states to use this tool to remove children from fit parents if the child is seeking a gender transition.” Becket attorney Joe Davis added on “Washington Watch” that, “if the Supreme Court allows it to happen here, it’s sure to multiply in other in other states.”

“The fact that this is happening in the heartland is chilling. State and local governments need oversight by citizens. Cases like this one will become more and more common,” stated Family Research Council Senior Fellow for Education Studies Meg Kilgannon to The Washington Stand. “A ruling affirming parental rights now will go a long way toward preventing future abuses in Indiana and across the country.”

Last year, the Indiana legislature joined more than 20 others in passing a bill protecting children from medical and surgical gender transition procedures. Also last year, the Indiana State Medical Association (ISMA) became the first mainstream organization in the nation to “oppose medical and surgical gender transition treatment for minors.” Indiana’s legislature and doctors agree that gender transition treatments are dangerous for children, but Indiana’s social services trampled these parents’ rights because they wouldn’t play along with a gender transition.

“This is really one of the most chilling incursions on religious liberty and parental rights that one can really imagine in this country,” Davis declared. “Tearing a child away from loving parents because of their religious beliefs, which are shared by millions of Americans, is an outrage to the law, parental rights, and basic human decency,” insisted Windham. “If the Supreme Court doesn’t take this case, how many times will this happen to other families?”

It is, in fact, already happening to other families, as the Becket brief pointed out — and not just in progressive jurisdictions. In January, Montana child protective services took a 14-year-old out of her parents’ home because they did not affirm her attempt at gender transition. The state’s social workers then transferred the minor to Wyoming to access gender transition hormones which the Montana legislature banned last year, deeming them harmful to minors. Now, the parents allege, Montana’s child services have informed them that they placed the child in a home in Canada.

For a Montana state agency to transfer a child out of her parents’ home, out of the state, and out of the country, to evade Montana state law is baldly outside both the agency’s rightful authority and the will of its legislature.

Just as lawless, contend the Indiana parents, were the actions of Indiana’s DCS. Case workers alleged abuse by the parents, but a state investigation “unsubstantiated the allegations of abuse and neglect,” argued Davis — so much so that they left other minor children in the parents’ care. Nevertheless, without finding the parents to be unfit, Indiana removed their trans-identifying son from their home. So, in addition to appealing two “egregiously wrong” federal court rulings upholding the state’s actions, the parents have also filed a separate lawsuit against the DCS case workers for making false representations against the family, Indiana Family Institute General Counsel Josh Hershberger, who also represents the parents, told The Washington Stand.

Among other allegations, Indiana argued and continues to argue that the parents had refused to care for their son’s eating disorder. Hershberger denied that charge, arguing that the parents were following their doctor’s orders and had already scheduled an appointment with a specialist when DCS first became involved in the case. Nevertheless, the eating disorder became part of the justification to remove the child from the home and then — after he threatened not to eat if returned to his parents’ care — part of the justification to keep him out of their home. But, as often happens with so-called “gender-affirming care,” this comorbidity went untreated and became worse once removed from his parents’ care. “Of course the wellbeing of the child suffers in these cases,” remarked Kilgannon.

After an adverse ruling from the U.S. Court of Appeals for the Seventh Circuit, Hershberger filed an appeal to the Supreme Court on September 25, 2023.

“I’m grateful to the parents in Indiana for pursuing this case,” said Kilgannon. “They are dealing with a difficult situation, but they can still manage to think of the broader implications of their experience for other parents in Indiana and across the country. Family court issues are so often under seal that it is impossible to discuss abuse of parental rights by the state.”

Indiana did not voluntarily file a response, but the Supreme Court ordered them to do so, an action which Hershberger said is “at least a favorable indicator” that the Supreme Court might decide to take the case. Hershberger and Becket Law filed a brief replying to Indiana’s response on February 15. The Supreme Court could decide whether to hear the case as early as March 15.

The parents’ reply brief emphasized aspects of the courts’ argumentation that “conflicts with [the Supreme] Court’s precedent on free speech and free exercise,” as well as its “decisions on parental rights.”

On free speech, the court ruled that “parental speech to a gender-dysphoric child about gender identity — one of the most contentious and consequential topics in our national discourse — is ‘of purely private concern’” and thus “of less First Amendment concern.” The brief contended that “This approach turns free speech and parental rights on their heads, as if government intervention to control speech were most justified when speech is between parent and child.”

Additionally, the brief contended that the Free Exercise Clause “protects the ‘rights of parents to direct the religious upbringing of their children’” citing a 1972 Supreme Court decision involving Amish families, Wisconsin v. Yoder. The court had specifically forbidden the parents from discussing their religious beliefs on gender with their child. To further their argument, the parents also cited Fulton v. City of Philadelphia (2021) to make the point that “Free Exercise claims don’t require intentional targeting.” In that case, the city had barred Catholic organizations from its foster care system for their religion beliefs on sexuality, and the Supreme Court ruled such discrimination was unacceptable.

On parental rights, the brief contended that “States can’t ‘force the breakup of a natural family … without some showing of unfitness,’” citing a 1978 Supreme Court decision, Quilloin v. Walcott. “Indiana conceded Petitioners [the parents] were fit, but removed their child anyway,” it complained. Accepting the court’s theory would essentially allow any “child struggling with gender identity to swap out loving (but non-transition-affirming) parents for a transition-affirming home selected by ideologically captured state officials,” simply by “threatening self-harm” — a highly manipulative move.

The brief also protested Indiana’s argument that the case was moot, since the child in question has become an adult as the judicial review process stretches into a third year. The brief first countered that Indiana’s argument was “an archetypal case” of an abuse of government power that was “capable of repetition yet evading review.” They protested that “Indiana’s tack … provides a playbook that any state can use to eviscerate bedrock constitutional protections while guaranteeing they remain insulated from review.”

The parents further rebutted claims of mootness by arguing that they face ongoing harm from the “collateral consequences” of one child being removed from their home, as Indiana has already argued the earlier decision against the parents creates “reasonable suspicion of past or imminent abuse” toward their other minor children.

Among the noteworthy features of the reply brief was the way it acknowledged a culture at war, giving the Supreme Court an opportunity to weigh in on the transgender ideology predations against children. Thus:

• “The number of youth identifying as transgender has exploded, with referrals at some institutions increasing by more than 4,000 percent.”
• “Around 70% of individuals with gender dysphoria have serious mental health comorbidities, such as severe anxiety and depression or eating disorders.”
• “By one estimate, ten million students nationwide attend schools that will actively conceal a child’s gender identity from his parents.”
• The brief presumed “many jurisdictions that have already ‘silenced’ counselors from attempting to ‘help minors accept their biological sex.’”
• “Some state legislatures are now authorizing the state to take custody where parents refuse full-steam-ahead gender transitions.”
• “With increasing frequency, governments run roughshod over parents’ religious beliefs on gender identity, including removing children from parents, favoring certain beliefs in divorce custody disputes, and preventing adoptions.”

Such alarming aggression from transgender activists, eager to trample every other constitutional right, will force the nation’s highest court to intervene sooner or later, so why not on this grievous miscarriage of justice? “Amid this fraught landscape,” concluded the brief, “with the lives of real children and families hanging in the balance, this Court should grant this petition and affirm its precedents on the right of fit parents to custody of their children.”

Joshua Arnold is a senior writer at The Washington Stand.