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Two Vermont families lost their foster parent licenses after imposition of a statewide requirement that foster families pledge to meet new licensing criteria intended to benefit potential LGBTQ+ foster children by ensuring support for their sexual orientation and/or gender identity. The new rules require “respect for the worth of all individuals regardless of … sex, gender identity, [or] sexual identity,” including through use of a child’s preferred pronouns. 

Both families are religious and objected that it would go against their deeply held beliefs that there are only two biological genders to use the preferred rather than biological birth pronouns of a child entrusted to their care. Because the state’s rules expressly prohibit variances from its fostering licensure requirements, the state revoked the two families’ licenses. They responded by suing the state in federal court to vindicate their constitutional rights and recover their foster care licenses.

As applied to these families, Vermont’s new foster parenting rules impermissibly compel speech and create a viewpoint-based litmus test: Only those applicants who pledge to use a child’s preferred pronouns may become licensed foster parents — of any child — under Vermont’s regime. The rules therefore violate the families’ First Amendment right not to be compelled to give voice to the state’s preferred viewpoint.

But the district court held the rules did not violate the families’ rights, holding that they instead regulate conduct, not speech. It thus entered an order denying the families’ request for a preliminary injunction, which the families appealed to the U.S. Court of Appeals for the Second Circuit.

FIRE filed an amicus brief in support of the appellants to highlight the longstanding need for courts to protect Americans from compelled speech, which is anathema to the First Amendment. It is imperative that courts protect both our freedom to say what we believe and our right not to say what we do not believe.