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Conservative legal group sues Vermont over LGBTQ-affirming foster care rules

A sign in front of a parking lot lists various government offices
Carly Berlin
Vermont Public and VTDigger
The Agency of Human Services offices at the Waterbury State Office Complex on April 19, 2024.

The conservative Christian law firm that helped orchestrate the downfall of Roe v. Wade is suing Vermont — again.

This time, the Alliance Defending Freedom has filed suit on behalf of two southern Vermont couples, who allege that Vermont's policy requiring foster families adhere to new policies aimed at protecting LGBTQ youth is unconstitutional.

“Vermont’s foster-care system is in crisis: There aren’t enough families to care for vulnerable kids and children born with drug dependencies have nowhere to call home. Yet Vermont is putting its ideological agenda ahead of the needs of these suffering kids,” Johannes Widmalm-Delphonse, an attorney for ADF said in a press release announcing the suit.

According to a complaint filed in federal court Tuesday, two Windham county couples — Brian and Katy Wuoti and Bryan and Rebecca Gantt — had been foster parents in excellent standing with the state for several years before their licenses were revoked.

They were made ineligible to continue taking children into their care by recent updates to the Vermont Department for Children and Families’ regulations, which now require foster families to affirm they’ll support LGBTQ youth, including by using a child's preferred pronoun and allowing them to dress in ways that align with their gender identity.

But the Gantts and Wuottis are Christian, according to the complaint, and believe that "a person’s sex is binary and fixed by God at conception."

"Speaking any of these words would cause the Wuotis and the Gantts to express a message they do not believe in and that contradicts their religious beliefs," the lawsuit argues.

In revoking their licenses to foster children, the complaint argues, Vermont violated the couples’ free speech, free association, religious exercise, due process, and equal protection rights under the U.S. Constitution.

“By categorically excluding the Wuotis and the Gantts from child welfare services because of their religious beliefs, the Mandate invidiously discriminates based on religion and treats the Wuotis and the Gantts worse than similarly situated persons who do not share their religious beliefs,” the lawsuit states.

ADF has become arguably the most important — and well-funded — conservative legal group in the country in recent years. Since 2011 alone, the group has notched 15 U.S. Supreme Court wins, many in landmark cases. It also wrote the Mississippi abortion ban that formed the basis of Dobbs v. Jackson, the 2022 Supreme Court ruling that struck down the federal right to abortion.

It has also aggressively litigated in Vermont. According to the Vermont Attorney General’s Office, the group has filed at least seven lawsuits in the state to date. Its prior legal challenges have enabled religious schools to participate in the state’s voucher system, defended school employees accused of transphobic behavior, and sought to strike down new consumer protections aimed at anti-abortion crisis pregnancy centers.

Jared Carter, a constitutional law professor at Vermont Law School, said that there's a national strategy at play.

“The legal argument at the heart of this I think ADF is trying to push is an expansion of the free exercise clause under the First Amendment,” he said. “And the U.S. Supreme Court has seemed amenable to these arguments in recent years.”

This latest suit names three officials with the Vermont Department for Children and Families as its plaintiffs: DCF Commissioner Chris Winters; Aryka Radke, who is Deputy Commissioner of the DCF’s Family Services Division; and Stacey Edmunds, DCF’s Director of Residential Licensing & Special Investigations.

In a statement, Radke wrote that it “bears mentioning” that ADF’s lawsuit had been filed at the start of June, which is celebrated as the month of Pride. LGBTQI+ youth in foster care have higher than average rates of substance abuse, human trafficking, and suicide, she added, and the state's policies are meant to help improve these outcomes.

“It is a human right for all to be valued and supported, regardless of sexual orientation or gender identity,” Radke continued. “The Family Services Division is here to serve all, and upholds that expectation for both its staff, as well as the foster parents who agree to take on the care of the youth in our custody.”

Vermont Attorney General Charity Clark, whose office will have to defend the state in court, said in a statement that she was still reviewing the case, and would respond “at the appropriate time.”

“For now, I can say that I greatly value DCF’s work in protecting the health and wellbeing of LGBTQIA+ youth in Vermont’s foster care system,” Clark wrote. “It is a shame that so much legal effort has been directed in recent years to undermining protections for these youth who deserve our most fervent care and compassion.”

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Lola is Vermont Public's education and youth reporter, covering schools, child care, the child protection system and anything that matters to kids and families. She's previously reported in Vermont, New Hampshire, Florida (where she grew up) and Canada (where she went to college).