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This morning, the U.S. Supreme Court refused to take a case in which Indiana was trying to deny the right of married nonbiological mothers in same-sex couples to be recognized as legal parents by being put on their children’s birth certificates. An appeals court had ruled in January that both mothers must be allowed on the birth certificates; because the Supreme Court has refused to take the case, that decision stands.
Indiana had been appealing a January 2020 ruling of the 7th U.S. Circuit Court of Appeals in Box v. Henderson that said Indiana must put both same-sex spouses on the birth certificate of a child born to one of them. This right is crucial for giving children with same-sex parents the legal protection of both parents from the moment of birth. In an order (PDF) posted this morning, the Supreme Court “denied certiorari,” meaning they will not hear the case.
I wrote at length about the case in June, when Indiana asked the Supreme Court to take it, and just a few weeks ago, when it filed an additional brief. Please go read those posts if you want to try and understand the convoluted logic by which Indiana was trying to say that only biology, not marital status, matters for birth certificates and that while it does allow a husband’s name to go on a child’s birth certificate even if another man is really the biological father (say, if he and his wife have fertility issues and use a sperm donor), it can treat same-sex couples differently.
Not buying it? Neither, apparently, was the U.S. Supreme Court. The court may also have been reluctant to issue a ruling in opposition to its 2017 decision in Pavan v. Smith, which said that married same-sex couples in Arkansas have the right to both be on their children’s birth certificates. That decision itself rested on the landmark 2015 decision in Obergefell v. Hodges, which said same- and different-sex couples must be treated equally. This case thus threatened not only the rights of same-sex parents, but also the solidity of Obergefell to protect all same-sex couples. The Supreme Court’s refusal to take it is a very good thing.
Congratulations to all of the eight plaintiff couples and their families, to the attorneys from the National Center for Lesbian Rights and Ropes & Gray who worked on the case, and all of the families in Indiana and elsewhere who will benefit.
We are a week away from the 2020 elections. President Trump’s nominee Amy Coney Barrett has just been seated on the U.S. Supreme Court. A case that the court will be hearing the day after the elections has me as concerned as the elections themselves, for it goes to the heart of how our country treats its children and to LGBTQ people’s right to be treated equally as prospective parents.
The case, Fulton v. City of Philadelphia, began in 2018, when the City of Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court.
The ACLU intervened on behalf of the Support Center for Child Advocates, which provides legal representation and services to children in the foster care system, and Philadelphia Family Pride, a nonprofit organization for LGBTQ parents and prospective parents. They argued that children and families would be harmed by CSS’ actions. CSS countered by arguing that they had a First Amendment right to deny service based on religious beliefs, and asked the court for a preliminary injunction requiring the city to continue referring children to them while the case proceeded. The U.S. District Court for the Eastern District of Pennsylvania denied that injunction in July 2018, and a three-judge panel of the 3rd U.S. Circuit Court of Appeals in April 2019 supported the district court’s position.
CSS had also tried in August 2018 to petition the Supreme Court to grant them an injunction, but this was denied, though Justices Clarence Thomas, Samuel A. Alito Jr., and Neil Gorsuch dissented. CSS appealed to the Supreme Court again after the appeals court ruling, and in February 2020, the Supreme Court took the case. In June, the Trump administration filed a brief siding with CSS.
Depending on how the Supreme Court rules and how broad or narrow its ruling is, Fulton could create a license to discriminate in Philadelphia or around the country, said the Movement Advancement Project (MAP) in an August report. Otherwise-qualified prospective parents could be turned away by child service agencies. LGBTQ children could be turned away or be placed with families that don’t support their identities.
Beyond child welfare, MAP said, a very broad ruling could even mean that other institutions receiving government funding, such as soup kitchens and job training programs, could claim religious exemptions and “serve only those who share their own beliefs or [refuse] to provide critical services to those who don’t.”
The outcome could also reduce the possibility of successfully challenging existing discriminatory laws. Eleven states now allow discrimination in child services by agencies citing religious beliefs, all but two allowing it even for taxpayer-funded agencies. And the amount of taxpayer money in child services is significant. An estimated $29.9 billion in federal, state, and local funds was spent on child welfare in 2016, according to the nonpartisan, nonprofit research center Child Trends. Beyond child services, the Trump administration last November issued a rule that allows not only child service agencies, but also other recipients of grants from the U.S. Department of Health and Human Services (HHS), to cite their religious beliefs as a reason to discriminate.
It’s important to understand the arguments made by those wishing to allow this discrimination. One is that faith-based child service agencies would otherwise be forced to close, limiting the number of homes available to the more than 400,000 children in the foster care system. As the ACLU notes on its website, however, most faith-based foster care agencies do accept all qualified families. Bethany Christian Services in Philadelphia, in fact, changed its policy after the city objected and now accepts same-sex couples wishing to foster children. When some agencies have chosen to stop offering taxpayer-funded services rather than comply with nondiscrimination laws, others, including faith-based ones, “have stepped in to provide those services,” says the ACLU. The shortage is thus of foster families, not of agencies—and turning away otherwise-qualified people would exacerbate this.
Another argument is that prospective foster parents who are turned away can just go to another agency. Even if there are other agencies nearby that will serve them, however (not always a given), the prospective parents may choose to stop trying and not to “risk further humiliation,” notes the ACLU.
Yes, freedom of religion is a founding principle of this country—but so is the separation of church and state. That means that any organization using public funds should not impose its beliefs on others or use them as a reason to discriminate. Many agree. In August, more than 1,000 experts and organizations—including LGBTQ, civil rights, and child welfare organizations, faith-based foster care agencies, faith leaders, legal scholars, and bipartisan elected officials—filed nearly 50 briefs with the U.S. Supreme Court in support of Philadelphia and its position.
Taking Action, Looking Ahead
A loss in this case would first and foremost be harmful to the many children in need of homes. It would also set back the family-building plans of many LGBTQ people and others and could have a far-reaching impact on other critical social services.
Family Equality is launching a storytelling project with the goal of changing “hearts, minds, and policies” around this case and these issues. If you have experience with the child welfare system in any context, visit their website to see if your story can help.
No matter what happens on November 3, our work fighting for equality—for our families and others—will continue on November 4 and far beyond.
(Originally published with slight modification as my Mombian newspaper column.)
Mermaids at Pride in London, 2019. (Wiktor Szymanowicz/Barcroft Media via Getty Images)
Daminee Budhi is the legal policy officer at Mermaids. Writing ahead of this week’s landmark court battle over trans children’s access to puberty blockers, she argues that a positive ruling for the claimants could affect access to healthcare for all children.
A judicial review has been brought against The Tavistock and Portman NHS Trust, which houses the Gender Identity Development Services (GIDS) clinic, and which supports young people, and their families, who are experiencing difficulties around their gender identity.
The claimants are a 23-year-old former Tavistock patient, Keira Bell, and a ‘Mrs A’, the mother of an autistic 15-year-old who is on the GIDS waiting list. Their argument goes that that those under the age of 18 are unable to give informed consent for affirmative medical treatment, specifically puberty blockers.
If successful, the case threatens to set a far-reaching and regressive legal precedent, undermining the landmark case of Gillick v West Norfolk (1986), which has given young people the right to make important decisions about their own bodies without the need for parental consent. Gillick competence recognises “the evolving maturity and individuality of children”. All children. Not certain children with certain needs. Ending Gillick competence for trans teenagers seeking puberty blockers would fly directly in the face of international best practice and effectively class them as being incapable of making decisions like anyone else their age.
Being transgender is not a psychiatric disorder.
The World Health Organization reclassified gender incongruence last year, stating correctly that it is not a psychological or psychiatric disorder. But what is seemingly nodded to in this case is that trans young people are presenting as gender-diverse due to some form of mental instability, or lack of competence. In fact, studies have shown that, far from affirming or consolidating mental-health issues, puberty blockers can and do have a positive effect on trans young people because they delay of the onset of a puberty that is likely to cause them immense distress.
Puberty blockers can and do have a positive effect on trans young people.
As one example, puberty blockers have been described as ‘life savers’ by a study published in the medical journal Paediatrics in January 2020, which showed that the treatment significantly reduces a trans child’s likelihood of experiencing mental-health issues or suicidal thoughts.
Make no mistake: The outcome of this judicial review is a matter of life or death for some trans teenagers.
Puberty blockers now, contraception and abortions next?
Not only would this judicial review, if successful, question young trans people’s ability to consent to medical treatment, it would also require such an intensely personal medical decision to be handled by an often intimidating and impersonal judicial system – rather than a medical team, who are trained to support young people in making such important medical decisions.
Meanwhile, this case has far-reaching implications beyond trans lives. As a cisgender woman as well as a trans ally, I want to explore the broader implications of this case to all women. What might the judicial review mean, more generally, for young people and their right to make decisions about their own bodies?
This case has far-reaching implications beyond trans lives.
The case goes right to the fundamental core of Gillick competency and how it should be applied to different demographics of young people. I see a very real risk that this case challenges the rights of all those under 18 who rely on Gillick competence in order to make their own informed decisions about their bodies. That includes women under 18 who require access to the pill and even abortions without parental consent.
We cannot view the rights of trans children in a vacuum; to do so would be a dangerous mistake. If this claim were successful, it would be a huge loss for anyone who believes that children should have the right to decide, when appropriate, what happens to their bodies.
Gillick competency – as well as the Fraser guidelines that refer specifically to advice and treatment about contraception and sexual health – was created to protect young people, at the same time identifying that they have the right to be their own advocate once they have an ability to understand what the consequences of treatment may be, or importantly, what the consequence of not having treatment may be.
If we deny trans young people the ability to consent to medical treatment, who will be next?
What would be next? In my opinion, it’s a slippery slope: if we deny trans young people the ability to consent to medical treatment, who will be next?
We are all as vulnerable as the most vulnerable people in society, and right now, with constant misinformation spread online, in politics and in traditional media including the UK’s largest newspapers and the BBC, trans people are very vulnerable indeed. If a positive claim does have a domino-effect, we are looking at a potential mass rollback of child rights across the board. This undermining of Gillick competence nods towards a future where the right to abortion and pro-choice decisions are restricted for all, destroying freedoms long fought for by women’s rights activists.
The rights of all children are at stake in this case – not just trans kids.
At Mermaids we support young people and families no matter the journey they are on. We offer no medical advice, but we do bear witness to young people being provided with vital information, such as the purpose and nature of the treatment, the likely effects and risks attached to undergoing such treatment (and the effects of not), the chances of success, as well the availability of other options that are out there, given to them by NHS medical professionals.
The rights of all young people – transgender or otherwise – are at stake here.
I would ask people not to let the rhetoric around trans issues blind them to the truth lying barely beneath the surface of this case. The rights of all young people – transgender or otherwise – are at stake here. If young people have the right to make informed decisions about their own bodies, then surely we must accept that transgender and gender-diverse children cannot be excluded from that right.