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An Indiana Catholic couple is asking U.S. Supreme Court to take their case after their transgender child was taken from their home because the parents would not use the child’s preferred pronouns.
Attorneys with the Becket Fund for Religious Liberty, representing parents Mary and Jeremy Cox, filed a reply brief Thursday urging SCOTUS to grant cert to their case, M.C. and J.C. v. Indiana Department of Child Services, 23-450.
In 2019, the Coxes’ son informed them that he identified as a girl. But because of their religious belief that God creates human beings with immutable sex — male or female — they could not refer to their child using pronouns and a name inconsistent with what was given at birth.
In 2021, the Indiana Department of Child Services began investigating the Coxes following two reports that they were suspected of abusing or neglecting their child.
According to the state’s response opposing cert, filed Feb. 1, “One report alleged that Mother was using ‘rude and demeaning language’ toward A.C. ‘regarding Child’s transgender identity.’ The second report, just 10 days later, alleged that parents were ‘verbally and emotionally abusing Child because they do not accept Child’s transgender identity,’ and that ‘the abuse was getting worse.’”
A DCS family case manager investigated the reports and met with the parents, A.C. and A.C.’s siblings, and spoke with an employee of A.C.’s school.
DCS alleged A.C. was a child in need of services due to the neglect and the parents’ actions endangering A.C.’s health.
According to the CHINS petition, both Mary and A.C. “stated that Child had been suffering from an eating disorder for the past year but had yet to be evaluated by a medical professional”; the parents had withdrawn A.C. from school and DCS “was unaware of the family’s intent to enroll Child in a new school”; and the parents had “discontinued” any therapy for A.C.’s mental health issues.
The petition also alleged that A.C. did not feel mentally or emotionally safe in the home and was “more likely to have thoughts of self-harm and suicide” at home “due to mental and emotional abuse.”
The Madison Circuit Court held a combined initial and detention hearing to determine whether there was probable cause to find that A.C. was in need of services and, if so, whether the child should be detained.
After hearing testimony from the family case manager and Jeremy, the trial court concluded that there was probable cause that A.C. was a CHINS.
The trial court ordered A.C. removed from Mary and Jeremy’s home but did not require that they be placed in a home that either affirmed or rejected their declared gender. The court also ordered unsupervised visitation between the parents and A.C. “’so long as certain topics’ (a category left undefined at the time) ‘are not addressed.'”
The court also ordered A.C. to continue eating disorder treatment and to undergo psychological evaluation.
According to Becket, “After completing its investigation, Indiana made an about-face and abandoned all allegations against Mary and Jeremy, admitting that the accusations of abuse were unsubstantiated. However, Indiana surprised the parents by arguing that the disagreement over gender identity was distressing to their child and contributed to his eating disorder — even though that disorder became worse after he was removed and placed in a transition-affirming home. The trial court relied on Indiana’s argument to keep the child out of his parents’ custody and keep the gag order in place.”
According to the state, at the final dispositional hearing, DCS explained that its goal was reunification but that A.C.’s medical issues needed to be resolved.
“The court emphasized that it was not removing A.C. from the parents’ home due to a disagreement or ‘a child having a certain lifestyle that the parent[s] don’t agree with.’ … ‘There ha[ve] always been issues’ when ‘children do things that the parents don’t agree with,’ the court explained, and those disagreements are ‘not a reason to remove a child from a home,’” according to the state’s brief.
The court ordered A.C. to participate in eating disorder treatment and individual therapy and also ordered the parents and A.C. to continue family therapy. Additionally, the court left in place its order limiting discussion about transgenderism during visitations. The court agreed that it was acceptable to have discussions about A.C. and the parents’ beliefs about gender identity.
“In fact, ‘at some point they have to have that conversation.’ The court emphasized that these conversations should occur within the ‘family therapy that is being ordered’ because of the connection between these conversations and A.C.’s anorexia,” according to the state.
In 2022, Mary and Jeremy appealed the trial court’s orders to the Court of Appeals of Indiana, which affirmed. They then sought rehearing, which the Court of Appeals denied.
Meanwhile, A.C. turned 18 years old and DCS terminated the case.
Mary and Jeremy then petitioned the Indiana Supreme Court for transfer, but their petition was denied.
Before the U.S. Supreme Court, the state is arguing that the case is moot because A.C. is now an adult and there is no relief available to the parents.
“Attempting to shoehorn questions about the relationship between parents and the State into a moot, fact-driven dispute, beset by uncontested state court factual findings subject to clear-error review, would risk producing a narrow, muddled statement,” the state’s brief says. “The Court can and should wait for a better opportunity to provide any guidance that may be needed.”
But the Coxes are arguing that their case is an excellent vehicle for addressing the question of when the state can “muzzle parental speech and remove a child from the home of admittedly fit parents.”
“Petitioners recognized that A.C.’s eating disorder worsened while out of their home and in the state’s custody. And they, in their judgment as fit parents, knew that A.C. would do best in their home while receiving treatment,” the parents argue in their brief. “Petitioners promptly objected to removal at the dispositional hearing and continue to object today.”
They also argue that Indiana could make similar claims and allegations about one of their minor children.
Further, they say, the decision conflicts with the court’s decisions on parental rights.
“’Around 70% of individuals with gender dysphoria have serious mental health comorbidities, such as severe anxiety and depression or eating disorders,’” the Coxes’ brief says. “But under Indiana’s position, parents who want to treat the comorbidity without affirming the dysphoria — based on their beliefs and a growing body of research — are gambling with the custody of their children. This Court’s parental rights precedents require otherwise.”
Lastly, the brief argues that the case is an issue of nationwide importance because “the numbers of transgender youth are rising, matched by governmental willingness to remove gender-dysphoric children from their parents’ custody.”
“Indiana’s tack — blame a comorbidity and dodge adjudication of parental fitness — provides a playbook that any state can use to eviscerate bedrock constitutional protections while guaranteeing they remain insulated from review,” they argue.
“This is what every parent is afraid of. We love our son and wanted to care for him, but the state of Indiana robbed us of that opportunity by taking him from our home and banning us from speaking to him about gender,” the Coxes said in a statement released via Becket. “We are hopeful that the Justices will take our case and protect other parents from having to endure the nightmare we did.”
Mary and Jeremy are represented by Becket and Madison attorney Joshua Hershberger.
“If this can happen in Indiana, it can happen anywhere,” Lori Windham, vice president and senior counsel at Becket, said in a news release. “Tearing a child away from loving parents because of their religious beliefs, which are shared by millions of Americans, is an outrage to the law, parental rights, and basic human decency. If the Supreme Court doesn’t take this case, how many times will this happen to other families?”
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