". . . and having done all . . . stand firm." Eph. 6:13


Parents Lose Appeal for Custody of Teen Identifying as Transgender

October 26, 2022

The Court of Appeals of Indiana on Friday affirmed a trial court decision removing a 17-year-old minor from the custody of his parents for their refusal to affirm him in a female gender identity. The case displays the messy, personal qualities in a gender identity crisis, as well as the disastrous implications of permitting the transgender ideology to gain a foothold in law.

In May 2021, the Indiana Department of Child Services (DCS) “received a report alleging that Mother was verbally and emotionally abusing then-sixteen-year-old Child by using rude and demeaning language toward Child regarding Child’s transgender identity” (the court used “Mother” and “Child” in place of proper names to protect the minor’s anonymity).

These are serious accusations. But, in an age where some people believe that “misgendering” is a fireable offense, it’s prudent to examine whether the substance of any such charge matches its interpretation. The Court of Appeals reproduced only one of the mother’s remarks, which we may take as the most extreme. The mother said, “[Child’s preferred name] is the b**** that killed my son.” Wow. That’s a severe sentiment. At the very least, we could say it’s not a model for how parents should strive to respond when their child “comes out” to them.

But is it abusive? An increasing proportion of Americans, including those in positions of power, would say yes. The trial court agreed that the child was a “child in need of services” (CHINS) due to the parent’s actions and removed him from their custody. DCS had argued in court that “Child’s physical or mental condition was seriously impaired or seriously endangered due to the Parents’ neglect” (CHINS-1) and “due to injury by the Parents’ acts or omissions” (CHINS-2).

Here’s a different interpretation of what happened. The parents were (probably still are) overwrought, paralyzed with grief. They had tried their best in the 18 short years their son lived under their roof to train him to be a man. Now, he had thrown away 16 of those years, telling his parents, ‘Actually, I’m a girl now. Those 16 years of memories you made with your precious boy were all a lie.’ No one ever talks about the emotional trauma parents endure when their kids stab them in the back like this; our culture cares way more about the “emotional abuse” the child might endure from parents who continue to lovingly train them despite their rebellion.

It’s not difficult to understand how these parents said things they shouldn’t have. Upset, grief-stricken people are liable to utter rash words they later regret. In fact, “If anyone does not stumble in what he says, he is a perfect man, able also to bridle his whole body” (James 3:2). Unfortunately, families often bear the brunt of unkind words, since they are the ones around when people are off their guard. Without endorsing rash words, we should recognize that they are all too common — even expected in a world peopled with fallen sinners.

It seems, at some point, the Indiana DCS realized they had a weak case. They added another petition arguing that the child was in need of services because “the Child substantially endangers the Child’s own health” (CHINS-6). The court explained, “Child had lost ‘a significant amount of weight,’ Child was throwing away and hiding food and neglecting to eat full meals.” A clinical neuropsychologist “diagnosed Child with major depressive disorder, generalized anxiety disorder, parent-child relationship problem, and gender dysphoria.” Before a November 2021 hearing, “the parties informed the court that they had reached an agreement that DCS would dismiss the CHINS-1 and CHINS-2 allegations, unsubstantiate and expunge the record of any reports related to the Parents, and proceed under the CHINS-6 statute.” Essentially, DCS abandoned their original line of attack and created a whole new strategy.

Based upon what has happened since, it appears that DCS’s pivot duped the parents and their legal team. The government agreed to drop the CHINS-1 and CHINS-2 allegations, that parental misconduct put the child at risk, in favor of a CHINS-6 allegation, that the child was a risk to himself. That seems like great news for the parents, so they didn’t object. However, they did not regain custody of their child. When they appealed, the court dismissed the question as moot because the parents did not object to the CHINS-6 declaration. It’s not obvious why their failure to object rendered the question moot, and they clearly didn’t believe it was so, or they wouldn’t have appealed.

It seems the trial court was attempting to weave together taking the child out of the parents’ custody but not blaming them for it — two incompatible fabrics. They identified “a [nexus] between this discord about the lifestyle and the medical issues” (brackets in original). Nexus is an obscure synonym for “connection,” used here to obscure the issue. The court implies that the parents’ religious beliefs caused the child’s other medical issues, while abstaining from saying so outright, which would be an accusation. While claiming neutrality, “not taking any issue with the child’s views or the parent[s’] views,” the court subtly imputes blame to the parent’s religious beliefs by alleging an undefined “nexus” between them and their child’s medical issues.

But Dr. Jennifer Bauwens, director of FRC’s Center for Family Studies, refuted that alleged connection. “People who identify as transgender have many more issues than just gender dysphoria” whether they are affirmed or not, she said. “People who are ideologically driven on this matter want us to think that one of the reasons why people have all these other mental health issues is what’s called the Minority Stress Framework, which means society doesn’t accept you.” But she said that argument is undercut by the fact that many minority groups are far less likely to harm themselves than people who identity as transgender.

Instead, clinicians “should be looking for what is contributing to the gender dysphoria,” Bauwens proposed. Those other mental health issues “merit a clinical exploration. But if someone comes and says, ‘Gender dysphoria is my issue,’ then everything else gets set aside, and there’s no room to get at the root issues.” The real problem, Bauwens added, is that “counseling has become so politicized. Gender dysphoria has become the root issue for some psychologists, and those other issues are going to be secondary to anything that presents in the realm of gender dysphoria.” It’s possible these Indiana parents had encountered a counselor with just such a bias. Per the court, “Child had been in therapy, but the Parents had discontinued it.” If it were my child, I would discontinue it, too, if it were a type of therapy likely to do more harm than good.

After poorly concealing its illogical decision, the court went on to reject all the parents’ claims regarding fundamental rights. First was parental rights, which the court acknowledged and then overruled. “A parent has a fundamental right to raise his or her child without undue influence by the state,” they justly acknowledged. However, they added, “the State has a compelling interest in protecting Child’s welfare.” That statement itself is less problematic than the reason they gave for it, “the unchallenged CHINS-6 adjudication.” Did the parents know they were effectively signing away their parental rights by refusing to challenge it? Are fundamental rights so flimsy that they can be sacrificed to a legal loophole? This case raises concerning questions.

Next, the court steamrolled the constitutional right to free exercise of religion. The parents refused to use their child’s preferred pronouns “based on their sincerely held religious beliefs,” and the court never objects to those on the surface. Rather, the child was taken from the home “based on Child’s medical and psychological needs and not on the Parents’ disagreement with Child’s transgender identity.” Yet the court found a “nexus between this discord about the lifestyle and the medical issues,” so the parents’ religious beliefs were ultimately the reason. The court takes away their child because of their religious beliefs, just like it would if it were because they were guilty of gross negligence or abuse; the court then denies this action is a punishment, or that it is based on their religious beliefs. The court demonstrates so much talent for verbal gymnastics they could create oceanfront plats in Arizona.

To add insult to injury, the court even squelched the parents’ freedom of speech, forbidding the parents “from discussing Child’s transgender identity during visitation,” but they could discuss it in family therapy. Once again, they grounded their reasoning in the claim that “Child’s eating disorder and self-isolation were connected to the discord at home regarding Child’s transgender identity” (at least they forsook “nexus”) — which again is code for, “We think it’s the parents’ fault.” The court of appeals further explained that private speech deserves less protection from the First Amendment than public speech, and, under Indiana case law, that permits courts to restrict parents from discussing topics of disagreement with their children.

At least four implications follow from this shallow dismissal of the right to free speech. First, this seems patently unhealthy. Parents and teens don’t have space to construct a healthy relationship with an elephant in the room. Second, this appears to be a further encroachment on parental authority. If courts can dictate off-limit topics to parents, how can parents maintain the authority to direct the upbringing of the children? Third, surely children can game the system. If they can figure out how to exploit differences between mother and father, two people who have learned to live together for years on end, surely children are clever enough to exploit differences between parents and state in the adversarial environment of a courtroom.

Fourth and most important, matters of identity are too important to be restricted. Unlike disputes over bedtime, music volume, carpooling, and homework (purely private matters), discussions of identity are fundamental to who we are as human beings, and how we relate to one another. This is why they so frequently become public matters (as the culture war skirmishes in states nationwide illustrate). Never is this more important to discuss than in the teenage years, shortly before an adolescent leaves home. They desperately need a solid grounding in their own identity, and no one is better suited than parents to help them attain this. In fact, this is one of the chief responsibilities of parents in those final years before their children fly the coop. For the state to positively ban parents from carrying out this vital function does a disservice not only to the parents, but to the child as well.

Why has The Washington Stand chosen to highlight this sad situation and messy legal setback? Conservative media has often highlighted religious freedom victories, featuring the most accomplished legal teams representing clients of impeccable integrity. But by definition, not everyone can expect above-average outcomes. Everyone has flaws, and a legal spotlight often exposes them. This situation, featuring imperfect parents trying to care for their struggling teen, and imperfect lawyers trying to represent them, paints a far more realistic portrait for the legal struggles ordinary families will face as the transgender tidal wave sweeps away everything in its path.

Just this month, a Virginia state delegate planned to reintroduce legislation that would take children who identify as transgender away from non-affirming parents by criminalizing the parents’ refusal to affirm their child’s preferred gender (she later backtracked after criticism). Meanwhile, in Indiana, courts and social workers are obtaining the same outcome under existing law. Progressives are clear about their legislative objectives, but by twisting a few definitions the present legal structure can suit them just fine. “This is not even a slippery slope; it’s a cliff — that we would have ideological removals of children from their parents,” Bauwens warned.

And remember, we aren’t talking about a progressive stronghold here; this is Indiana. If this could happen in the Hoosier state without any changes to the law, then parents in any red pocket of the country could find themselves at risk.

There is no “live and let live” with the transgender ideology. Inflamed with its conquests, it rushes imperiously on to more. It’s targeting children, and it won’t allow parents to stand in its way. The only sound strategy of resistance is to cut off the head of the snake. We must argue — patiently, persistently, persuasively, and powerfully — that any gender identity contradicting the biological reality of a person’s genetically determined sex is fiction, a mental delusion that must be treated, not coddled.

Joshua Arnold is a senior writer at The Washington Stand.