Washington Foster Parents' First Amendment Challenge to LGBTQ+ Affirmation Licensing Rule Survives Dismissal

Jennifer and Shane DeGross, licensed Washington foster parents from 2013 to 2022, sought to renew their license in 2022 but ran into a recently added requirement under Washington Administrative Code § 110-148-1520(9) obligating foster parents to support a child's sexual orientation and gender identity by using preferred pronouns and chosen names. The DeGrosses told their licensing agency, Olive Crest, that their Christian beliefs — specifically that biological sex is immutable and God-given — prevented them from complying. Olive Crest informed them they were ineligible to renew.

After the DeGrosses sued in March 2024, the parties agreed to a stay while the Department of Children, Youth, and Families considered a new application. On January 23, 2025, Olive Crest submitted that application with a waiver request. The Department approved the waiver on August 7, 2025, and issued a license on September 19, 2025 — but with significant restrictions: foster care limited to children ages 2 to 5, respite care for children ages 2 to 18, no emergency placements, mandatory pre-placement case-plan review, caseworker notification of the waiver, and required completion of LGBTQIA+ Basics for Supporting Youth training within the first year.

On the free speech claim, the court held that the DeGrosses plausibly alleged viewpoint discrimination. Relying on the Ninth Circuit's recent decision in Bates v. Pakseresht, 146 F.4th 772 (9th Cir. 2025) — which struck down a materially similar Oregon foster-care rule — the court held that Policy § 1520 restricts speech on the topic of SOGIE while compelling speech aligned with the state's perspective, a classic viewpoint-based distinction subject to strict scrutiny. Because the state did not attempt to argue its restrictions served a compelling interest and were narrowly tailored, the free speech claim survived. The court also held that the as-applied challenge remained live: the waiver process forced the DeGrosses to choose between forfeiting their speech rights to obtain an unrestricted license or keeping their beliefs and accepting a more limited one.

On free exercise, the court applied the neutrality and general-applicability framework from Church of Lukumi Babalu Aye, Inc. v. City of Hialeah and drew on Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017), for the principle that the government may not impose special disabilities or withhold benefits on account of religious identity. The court held that Policy § 1520, though facially neutral, plausibly operates to burden applicants with sincere religious objections to SOGIE affirmation while leaving nearly everyone else unaffected — tracking the reasoning of Blais v. Hunter, 493 F. Supp. 3d 984 (E.D. Wash. 2020), which held that a predecessor Washington policy violated the Free Exercise Clause as applied to foster-care applicants on similar grounds. The court further held that the Department's discretionary waiver mechanism under Washington Administrative Code § 110-148-1630 renders the policy not generally applicable under Fulton v. City of Philadelphia, 593 U.S. 522 (2021), because the mere existence of a discretionary exemption process invites individualized government assessment of reasons for noncompliance. With the policy neither neutral nor generally applicable, strict scrutiny applies, and the court declined to resolve at the pleading stage whether the state could satisfy it.

Three claims did not survive. The free association claim under the First Amendment was dismissed with leave to amend because the DeGrosses did not identify what associational right they were asserting. The equal protection claim was dismissed with leave to amend because the DeGrosses tied it entirely to their free exercise theory but failed to allege facts showing discriminatory intent. The personal-capacity claims against former Department Secretary Ross Hunter were also dismissed: Hunter left his position on January 15, 2025, and the DeGrosses did not submit their waiver application until January 23, 2025, meaning any constitutional violation occurred after he departed. The court granted leave to amend all dismissed claims by May 13, 2026.

The case was decided by United States District Judge David G. Estudillo.