Vermont's refusal to place foster children in families with religious objections to gender ideology compels parents to parrot the government's preferred messages, establishes the Green Mountain State's own religion and treats "comparable secular activity" more favorably, while the judge who upheld the gender-affirming mandate relied on dubious research.

Those are a handful of arguments in friend-of-the-court briefs as the 2nd U.S. Circuit Court of Appeals evaluates whether Vermont violated the First Amendment by stripping foster-care licenses from Christian couples Brian and Katy Wuoti and Michael and Rebecca Gantt.

Social workers gave the couples glowing reviews, but Vermont deemed them "unqualified" to parent "any child (even a relative) of any age (even an infant) and for any length of time (even a few hours)" due to their religious beliefs, harming children who need "loving homes," the couples' lawyers at the Alliance Defending Freedom said.

No federal appeals court has yet determined "whether a state may categorically exclude families from foster care because of their protected speech and religious beliefs," though the 9th Circuit will "likely" rule on the issue "soon," ADF's opening brief says.

The San Francisco-based appeals court heard oral argument nearly a year ago, but has yet to rule, in another ADF case by Oregon widow and mother-of-five Jessica Bates, who is suing the Beaver State to let her adopt foster siblings without requiring her to use their preferred pronouns and even give them "hormone shots" if they desire.

ADF clients and foster parents Shane and Jennifer DeGross are also suing Washington state for adopting "Sexual Orientation and Gender Identity/Expression" regulations after accepting a permanent injunction against a "nearly identical" policy to settle an earlier lawsuit. That case is stayed until at least July pending settlement talks, an April 7 docket entry shows.

The Supreme Court turned down a related case by Mary and Jeremy Cox against Indiana last year, however, that sought to hold accountable the Republican-controlled Hoosier State for removing their now-adult biological son from their home following reports that they didn't use the child's preferred female pronouns and name.

Florida Attorney General James Uthmeier led 20 Republican colleagues and the Arizona Legislature in a brief accusing Vermont of exacerbating the foster-care "crisis across the nation as states deal with a shortage of foster homes."

It highlighted foster-care systems in Florida, Oklahoma and Idaho that place "children in homes suitable to their unique needs" without "disqualify[ing] scores of good-hearted citizens … by matching like-minded parents with like-minded children," meaning Vermont has not addressed its "compelling state interest" by the constitutionally required "least restrictive means."

'History of parenting foster children without raising any concerns'

Vermont started "incorporating" an LGBTQ affirmation requirement in foster rules in 2018, then issued binding regulations that allow one "variance," that parents do not need to "meet the physical, emotional, developmental and educational needs" of the child, the ADF brief says.

After that, state Department of Children and Families officials made clear the only reason the couples – whose husbands are both pastors – lost their licenses in 2021 and 2023, respectively, was their beliefs on sexuality and gender identity.

When the Wuotis answered "three" on a scale of one to five on how "accepting and supportive" they would be "of an LGBTQ foster child" – Katy herself struggled with gender dysphoria – the license-renewal official stripped the license because they could "not encourage a child to pursue same-sex romantic behavior" or a gender transition, according to the brief.

It quotes the state Human Services Board as saying it's "undisputed that petitioners are warm, loving, kind, and respectful people who have a history of parenting foster children without raising any concerns" but which upheld the Wuotis' revocation. Parents of three biological children, they had already adopted half-siblings through the department.

The Gantts had four children of their own when they started the application process, quickly getting an "emergency" placement for a child exposed to opiates in utero and eventually adopting a girl born with drug dependence and two boys, the brief says.

The same official who stripped the Wuotis' license two years earlier stripped theirs on the cusp of the Gantts getting "a boy soon-to-be-born to a woman suffering drug addiction" – with the department telling them they were "the unanimous choice" – because they declined to "use inaccurate pronouns or take children to pride parades because of their faith."

SCOTUS 'never affirmed a government-compelled speech requirement' in the home

The briefs supporting the Wuotis and Gantts are notable for their ideological range, with supporters and opponents of drag bans as well as traditional-marriage and gay-rights groups.

The Foundation for Individual Rights and Expression, which secured an injunction against a public university drag ban this spring, said Vermont's affirmation mandate demonstrates "the troubling willingness of government censors to punish – or push –specific views in the name of protecting minors" in both red and blue states.

President Obama nominee U.S. District Judge William Sessions, who largely ruled against Vermont when it tried to regulate the speech of pro-life pregnancy centers, wrongly found the foster rules only regulate conduct, thereby "skirting" SCOTUS precedent, FIRE said.

Foster applicants and licensees must "promise that they will support a child’s gender identity, which necessarily involves using a child’s preferred pronouns," the civil liberties group said, noting the district court hearing Bates' challenge to Oregon's foster rules reached the same conclusion even while denying her a preliminary injunction.

While Sessions emphasized the pronoun mandate is "based upon research and feedback regarding outcomes for LGBTQ youth," that is "ultimately irrelevant" because it doesn't change the constitutional analysis of compelled speech, according to FIRE, citing the SCOTUS precedent against compelled school recitation of the Pledge of Allegiance.

Vermont's rules reach much further "than other instances of compelled speech: The Supreme Court has never affirmed a government-compelled speech requirement like Vermont’s that applies to a private citizen in her own home," FIRE said.

The Manhattan Institute said Sessions was conned by bad research that fails to rebut the "overwhelming evidence that childhood gender dysphoria typically remits by adulthood" unless reinforced by social transition of the kind Vermont forces foster parents to embrace. 

"Youth gender affirmation is not an indisputably helpful or even neutral show of respect and support, but an active mental-health intervention that may inhibit a child’s ordinary development and prolong feelings of gender-related discomfort," the conservative group said. 

The reluctance to "automatically affirm" an overwhelmingly temporary phase of confusion is a "reasonable caution against long-term risks, which may include lifelong sterility, sexual dysfunction, mood disorders, and increased risk of cancer and heart disease," it said.

Vermont forces foster parents to adopt an ideology that includes "facilitating access to stereotypically gender-specific clothing and participation in events like Pride parades (without regard to the appropriateness of such events for children, irrespective of sexual orientation)," the gender-critical Women's Liberation Front brief says.

It's tantamount to a state-sponsored religion of "coerced indoctrination into misogynistic ideologies" that harms children, women, homosexuals and bisexuals, according to the group, which reiterated its membership is nearly 40% lesbian and bisexual women.

This violates the Establishment Clause by mandating recognition of a "metaphysical" construct that is "wholly self-determined" and akin to the soul, WoLF said. Adherents "use its mystical associations to shield a highly idiosyncratic and unscientific belief system from inquiry," treating "any dissenter as an apostate, making reasoned questioning of its tenets impossible."

Vermont's rules are not generally applicable by providing a "mechanism for individualized exemptions" and favoring comparable secular conduct, the First Liberty Institute said.

Not only do licensors "necessarily" make "discretionary and case-by-case assessments to determine whether that applicant meets the anti-discrimination requirement," using the five-point scale of LGBTQ acceptance, but the nondiscrimination clause prohibits license denials based on "inability to care for children of a certain age or disability," the brief said.

The group noted the 9th and 3rd circuits have rejected school nondiscrimination and fire and police department "no beard" policies, respectively, because they allowed "ad hoc" exemptions and deemed "secular motivations … more important than religious motivations."