A Christian mother of five in eastern Oregon has gotten the okay from a federal court to proceed with her application to foster or adopt children, despite her refusal to affirm their gender identities.

In 2023, Jessica Bates sued the state for turning down her initial application after she refused to abide by the Oregon Department of Human Services’ requirement to affirm the gender identity of any child under her care.

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“I cannot support this behavior in a child,” Bates wrote in her application. “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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On Thursday, a three-judge panel at the Ninth Circuit Court of Appeals sent Bates’ case back to the district court to reexamine her claim against the state based on “strict scrutiny” for free exercise of religion and free speech. Strict scrutiny is considered the highest bar to clear for policies that may impinge on constitutional rights.

Bates can pursue her application to foster or adopt while the lower court reconsiders her case.

The mother of five biological children told the court she received a message from God encouraging her to care for more children shortly after the death of her husband in a car collision.

Bates is represented by the Alliance Defending Freedom (ADF), a Southern Poverty Law Center-designated hate group. ADF has shepherded several high-profile lawsuits opposing what they call the “homosexual agenda” through the courts, including Masterpiece Cakeshop v. Colorado and 303 Creative, Inc. v. Elenis, both of which enshrined discrimination against LGBTQ+ customers on the basis of religious views into law.

“We are willing to accept on this record that Oregon intended to act in the best interests of children, and not out of hostility or animus toward religion,” Judge Daniel Bress, appointed by the current president, wrote for the two-judge majority. “But that does not make Oregon’s policy neutral toward religion. For the reasons we have given, Oregon’s policy is not neutral, which means that for Bates’s Free Exercise Clause claim, we must apply strict scrutiny to Oregon’s denial of Bates’s application.”

In his dissent, Judge Richard Clifton, a George W. Bush appointee, agreed with the lower court that the state’s requirements concern Bates’ potential treatment of a child in her care, and not her religious beliefs.

“Parents would not be expected to entrust their children to caregivers who volunteer that they will not respect the child’s self-determined gender identity, if that is something the parents have decided is important,” Clifton wrote, referring to Oregon’s role as custodial “parent” of foster children. “Oregon should not be powerless to protect children for whom it has parental responsibility and for whom it has decided respect should be given.”

In an interview with KGW News after the appeals court decision, Bates said any child in her custody would be subject to the same Biblical obligations that her own children live under.

“I’m still gonna love them deeply. I’m not gonna reject them or anything,” Bates said of a child who might come out to her as LGBTQ+.

But she said she would not use a chosen name or pronouns that align with the child’s gender identity or allow them to change the way they dress. She would instead steer the conversation back toward her faith, she said.

She would remind them, Bates said, that “‘Hey, God makes our identity, and that’s something sacred and holy. And it might not feel like a gift right now, and you might be struggling with it, but that’s something actually really special, and you are beautiful and perfect, like just how you are right now.'”

It was left to Bate’s lawyers with ADF to villainize the state and portray its concern for the 30% of youth in foster care who identify as LGBTQ+ as nefarious and a form of indoctrination.

“Because caregivers like Jessica cannot promote Oregon’s dangerous gender ideology to young kids and take them to events like pride parades, the state considers them to be unfit parents,” said Jonathan Scruggs, the ADF senior counsel who argued Bates’ case. “That is false and incredibly dangerous, needlessly depriving kids of opportunities to find a loving home. The 9th Circuit was right to remind Oregon that the foster and adoption system is supposed to serve the best interests of children, not the state’s ideological crusade.”

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