If it can happen in Indiana, it can happen anywhere. My clients, Mary and Jeremy, lived every parent’s nightmare: Their child was taken away from them by the Indiana Department of Child Services and never returned to their home. Their son, a teenager, had recently told them that he was transgender and wished to live as a girl. The parents, faithful Catholics, did not believe that the best avenue for their son was to treat him as a girl but instead to seek help for his existing mental-health struggles. Studies show that teens with gender dysphoria frequently also struggle with depression, anxiety, or eating disorders.
Instead, someone reported to the Department of Child Services that Mary and Jeremy’s son was “unsafe” in their home. Indiana’s DCS then launched an investigation and took the teen into foster care, requiring that he must be placed in a foster home that would allow him to live as a girl. The case went to court, where the judge ordered the parents not to speak to their son about issues involving gender, except in the confines of mandated family-therapy sessions.
DCS bureaucrats slung some mud, impugning the parents’ good name with unsubstantiated allegations to try to justify keeping their son out of their home. But after a monthslong investigation, Indiana agreed in court that those allegations were, in fact, unsubstantiated — DCS dropped all allegations of abuse or neglect, and the court agreed the parents’ home was safe.
Happy ending, right? Wrong. While the teen was out of his parents’ care, and in a foster home that affirmed his desire to live as a girl, his nascent eating disorder became worse. Indiana officials went back to court to argue that the eating disorder justified keeping him in state custody — which was where it had worsened. They said his emotional distress grew worse when he was with his parents because of their disagreement over his gender identity. So that became the pretext for keeping him out of his parents’ home and in foster care — even though the state admitted that Mary and Jeremy were fit parents.
An appeals court upheld that decision. Chillingly, the court likened Mary and Jeremy’s situation to cases where parents refuse to let their children have life-saving blood transfusions. The court also upheld the state’s gag order — saying the state could ban Mary and Jeremy from speaking to their own son about his gender in their own home because this was “private speech” that lacks the same First Amendment protection as public speech.
What becomes of our families if the First Amendment protects what you say at a political rally, but parents are not free to share ideas and beliefs with their own children in their own home?
Now Mary and Jeremy’s case is at the Supreme Court. Becket is representing them, along with attorney Joshua Hershberger. Indiana’s attorney general has asked the Supreme Court to deny review, arguing that the case is moot because their son has turned 18. Indiana says that courts can no longer protect Mary and Jeremy’s parental rights, since their child has now done what all children eventually do: grow up. This logic would allow many such cases to avoid a full hearing in the court system, since gender dysphoria often becomes apparent in the teen years, and by the time a bureaucrat’s decision about a child’s fate wends its way through the state judicial system, the child will have turned 18. Beyond that, once the state removes one child from a family’s home, that can be used as evidence for removing other children from the home. Mary and Jeremy are rightly concerned — as any parent would be — that Indiana can now make similar claims and allegations about their younger children.
This case hits the Supreme Court at a key moment. At least 22 states have passed laws banning medical transitions for minors. The Biden administration and the ACLU have challenged the Tennessee and Kentucky bans as unconstitutional. The Supreme Court is likely to consider those cases at the same conference where it considers Mary and Jeremy’s case. Multiple challenges to similar state laws are working their way through the lower courts, including, ironically enough, Indiana’s own ban on medical transitions for minors.
Lower courts are also wrestling with cases about parents’ rights to opt their children out of public-school lessons on gender identity, a parental right that has overwhelming bipartisan support. (See here.) Even more troubling are a spate of cases involving schools that will help minors to transition while hiding that information from parents — even to the point of punishing teachers who want to tell parents what is going on with their kids.
For the Court to resolve these issues, it will have to answer the question of when the state can and cannot interfere with the rights of parents. Mary and Jeremy’s case presents a rare example: The state admits that they are fit parents who did not abuse or neglect their child. But it kept their child from their home anyway. If Indiana can do that, what will states like California and Oregon do? We shouldn’t wait to find out.