The Supreme Court refused to consider an appeal by Indiana parents who were denied custody of their teenage son who identifies as female.
In recent years, the issue of transgender children has been clouded by a lack of linguistic clarity, as the concepts of sex and gender—a politically and scientifically contentious idea with a definition that isn’t universally agreed upon—have become difficult to distinguish. Despite the distinct meanings of the two words, many institutions and individuals use “gender” to mean biological sex, including on fillable forms and documents.
Meanwhile, reported cases of gender dysphoria among young people have been exploding, prompting some experts to label the phenomenon a “social contagion.” This has led to the outbreak of litigation and legislative activity across the country over transgenderism and parental rights.
The decision comes two months after the Supreme Court declined to take up a case about whether an Indiana middle school was required to let a girl who identifies as male use the boys’ bathroom.
That ruling came after the U.S. Court of Appeals for the 7th Circuit affirmed a lower court’s injunction last year that allowed transgender students to use bathrooms that corresponded to their claimed gender identity. The case was Metropolitan School District of Martinsville v. A.C.
In the case at hand, the Supreme Court denied the petition for certiorari, or review, in M.C. v. Indiana Department of Child Services in an unsigned order on March 18. The court had considered the petition at the justices’ private judicial conference on March 15. No justices dissented. The court did not explain its decision. At least four of the nine justices must vote to grant the petition for it to advance to the oral argument stage.
Indiana’s position was that the parents, self-described devout Christians, did not lose custody because they believed children should be raised according to their biological sex.
The case goes back to 2021 when the Indiana Department of Child Services (DCS) received two reports that the teenager was being abused or neglected based on his claimed gender identity, according to court documents. One report said the parents were abusing their child because they did not respect his gender identity.
An Indiana statute similar to laws in most states permits the government to intervene in “a variety of situations in which even well-intentioned parents find themselves unable to prevent serious harm,” Indiana said.
The state also argued that the custody dispute was moot because the child, who was 16 when taken from the family home, has since become an adult.
The office of Indiana Attorney General Todd Rokita, a Republican responsible for defending state agencies in court, said in a brief (pdf) filed with the Supreme Court on Feb. 1, that the then-16-year-old child was removed from the family home to address a case of severe anorexia, an eating disorder. The purpose of the law is “to protect children” and others around them, “not punish parents,” the document states.
The court order in the case “does not rest on any moral judgment about the parents’ views or decisions but on medical necessity.”
The state law “can be used to provide services to children in a variety of situations in which even well-intentioned parents find themselves unable to prevent serious harm,” the brief states.
“Nearly every State has a statute similar to Indiana Code [Section] 31-34-1-6 … authorizing state intervention where children ‘are jeopardizing their own welfare or that of others.’”
‘Mental and Emotional Abuse’
DCS received reports in May 2021 that the parents were suspected of abusing or neglecting their child. One report stated that the mother was using “rude and demeaning language” regarding the minor’s transgender identity. A second report 10 days later claimed the parents were “verbally and emotionally abusing Child because they do not accept Child’s transgender identity,” and that “the abuse was getting worse,” the brief stated.
DCS investigated and began court proceedings alleging the parents were seriously endangering the child’s health. The agency said the child had been suffering from an eating disorder for a year but had yet to be assessed by a medical professional and had been removed from school.
DCS also said the child did not feel “mentally and/or emotionally safe in the home,” and was subjected to abusive language. In the agency’s view, the child was “more likely to have thoughts of self-harm and suicide” at home because of “mental and emotional abuse.”
The trial court issued a preliminary finding that there was probable cause to believe that the child needed state services and ordered the child to be removed from the family home. The court permitted unsupervised visitation by the parents provided that “certain topics,” a term that was not defined, “are not addressed.”
DCS expressed concern that the eating disorder was aggravated by the child’s disagreement with his parents and would worsen if he were returned to the family home.
The trial court held a final hearing in December 2021 and allowed DCS to take custody of the child for his “medical issues” to “get resolved.” The court directed the parents not to discuss transgenderism when visiting the child but said such discussions could take place during family therapy sessions.
The parents appealed the order to the Indiana Court of Appeals, which in turn ruled against them.
The appeals court rejected the argument that the trial court’s final order violated the parents’ Fourteenth Amendment right to the care, custody, and control of their child, their religious free exercise rights, as well as the claim that the child had been removed because of the parents’ opposition to transgenderism.
The parents, Mary and Jeremy Cox, filed a brief (pdf) with the Supreme Court on Feb. 15, saying that unlike in most other cases, “Indiana found the parents fit but still removed the child over an ideological dispute: a disagreement over gender identity.”
Indiana found “all allegations of abuse and neglect unsubstantiated,” but refused to return the child to the family home, the brief stated.
In a statement to The Epoch Times, the parents said their fight will continue.
“No other loving parents should have to endure what we did. The pain of having our son taken from our home and kept from our care because of our beliefs will stay with us forever.
“We can’t change the past, but we will continue to fight for a future where parents of faith can raise their children without fear of state officials knocking on their doors and taking their children.”
Their attorney, Joshua Hershberger of Hanover, Indiana, and Lori Windham, vice president and senior counsel at the Becket Fund for Religious Liberty, a public interest law firm focused on protecting religious freedoms, issued a joint statement.
“What Indiana officials did to Mary and Jeremy was a shocking attack on parental rights. Loving parents should not lose custody of their children because they disagree with the state about gender.
“We are confident that the Supreme Court will ultimately protect this basic right and ensure that parents can raise their children consistent with their religious belief,” they said.
Mr. Rokita also released a statement. “We always protect parental rights and religious liberty. Neither we nor the Indiana courts believe that the State can remove a child because of a parent’s religious beliefs, views about gender identity, or anything of the sort.
“Our office is fulfilling our statutory duty to defend this state agency and to keep an oath I swore when I took office. As the record shows, this state agency acted not on the use of pronouns but because of the child’s extreme eating disorder,” Mr. Rokita said.
The Indiana governor sets DCS policy and hires those employees. I am very sympathetic to the parents, and everyone who follows my work as attorney general knows that I am the biggest defender and proponent of parental rights,” he added.
From The Epoch Times
