88R10569 EAS-D

By: Leach H.B. No. 4624

A BILL TO BE ENTITLED

AN ACT

relating to gender modification procedures and treatments for certain minors; providing a civil penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. GENDER MODIFICATION PROCEDURES AND TREATMENTS. Chapter 161, Health and Safety Code, is amended by adding Subchapter X to read as follows:

SUBCHAPTER X. GENDER MODIFICATION PROCEDURES AND TREATMENTS ON

MINORS

Sec. 161.701. DEFINITIONS. In this subchapter:

(1) "Congenital defect" means a physical or chemical abnormality present in a minor that is inconsistent with the normal development of a human being of the minor's sex, including abnormalities caused by a medically verifiable disorder of sex development. The term does not include gender dysphoria, gender identity disorder, gender incongruence, or any mental condition, disorder, disability, or abnormality.

(2) "Gender modification procedure or treatment" means a health care procedure or treatment performed or administered for the purpose of:

(A) enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or

(B) treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.

(3) "Health care procedure or treatment" includes:

(A) surgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being; or

(B) prescribing, administering, or dispensing any drug or device to a human being.

(4) "Health care provider" means an individual or facility licensed, certified, or otherwise authorized by this state's laws to provide or render health care or to dispense or prescribe a prescription drug in the ordinary course of business or practice of a profession.

(5) "Minor" means an individual who is younger than 18 years of age for whom the disabilities of minority have not been removed.

(6) "Sex" means an individual's immutable characteristics of the reproductive system that define the individual as male or female, as determined by anatomy and genetics existing at the time of birth.

Sec. 161.702. CONSTRUCTION OF SUBCHAPTER. (a) This subchapter is remedial in nature and must be liberally construed to accomplish its purposes.

(b) This subchapter may not be construed to impose liability on a minor on whom a gender modification procedure or treatment is performed or administered in violation of Section 161.703.

Sec. 161.703. PROHIBITED GENDER MODIFICATION PROCEDURES AND TREATMENTS FOR CERTAIN MINORS. Except as provided by Section 161.704, a health care provider may not perform or offer to perform on a minor, or administer or offer to administer to a minor, a gender modification procedure or treatment.

Sec. 161.704. EXCEPTIONS. (a) This subchapter does not apply to a health care provider performing, offering to perform, administering, or offering to administer a health care procedure or treatment to a minor if the performance or administration of the procedure or treatment is to treat a minor's congenital defect, disease, or physical injury.

(b) For purposes of Subsection (a), "disease" does not include:

(1) gender dysphoria, gender identity disorder, or gender incongruence; or

(2) any mental condition, disorder, disability, or abnormality.

(c) This subchapter does not apply to a health care provider performing, offering to perform, administering, or offering to administer a health care procedure or treatment to a minor if the performance or administration of the procedure or treatment is continuing a procedure or treatment on the minor that began before September 1, 2023, and the minor's treating physician certifies in writing that, in the physician's good-faith medical judgment, based on the facts known to the physician at the time, ending the procedure or treatment would be harmful to the minor.

(c-1) The certification under Subsection (c) must include the physician's findings supporting the certification and must be placed in the minor's medical record.

(c-2) Subsection (c) may not be construed to:

(1) allow a health care provider to perform or administer a gender modification procedure or treatment that is different from the gender modification procedure or treatment performed before September 1, 2023; and

(2) waive a minor's right to bring an action under Section 161.706 for a gender modification procedure or treatment that does not comply with this subchapter after September 1, 2023.

(c-3) This subsection and Subsections (c), (c-1), and (c-2) expire September 1, 2033.

Sec. 161.705. EFFECT OF CONSENT. (a) It is not a defense to any legal liability incurred as the result of a violation of Section 161.703 that the minor, or a parent, legal guardian, or conservator of the minor, consented to the conduct that constituted the violation.

(b) This subchapter supersedes any other law regarding a minor's ability to consent to a gender modification procedure or treatment.

Sec. 161.706. CIVIL ACTION; EFFECT ON IMMUNITY. (a) A minor injured as a result of a violation of Section 161.703, or a parent, legal guardian, or managing conservator of the minor, other than a parent, guardian, or conservator described by Subdivision (2), may bring a civil action against:

(1) a health care provider who violated Section 161.703; and

(2) the minor's parent, legal guardian, or conservator who consented to the conduct that constituted the violation.

(b) Subsection (a)(2) waives any common law immunity granted to a parent, legal guardian, or conservator to the extent of liability created by this section.

Sec. 161.707. WRONGFUL DEATH ACTION. A parent, legal guardian, or conservator or next of kin of a minor may bring a wrongful death action under Section 161.706 in accordance with Subchapter A, Chapter 71, Civil Practice and Remedies Code, against a health care provider who violates Section 161.703 if the minor who is the subject of the action is deceased and:

(1) the minor's death is the result of the physical or emotional harm inflicted on the minor by the violation; and

(2) the parent, guardian, or conservator did not consent to the conduct that constituted the violation.

Sec. 161.708. LIMITATIONS PERIOD. Notwithstanding any other law, a claimant must bring an action under Section 161.706 not later than the earlier of:

(1) the 30th anniversary of the date the minor who is the subject of the action becomes 18 years of age; or

(2) the 10th anniversary of the minor's death.

Sec. 161.709. DAMAGES. (a) A claimant may recover compensatory damages, exemplary damages, and reasonable attorney's fees, court costs, and expenses in an action brought under Section 161.706.

(b) Compensatory damages include:

(1) reasonable economic losses caused by the emotional, mental, or physical effects of the violation, including:

(A) the cost of counseling, hospitalization, and any other medical expenses connected with treating the harm caused by the violation;

(B) out-of-pocket costs of the minor paid to the health care provider for the prohibited medical procedure; and

(C) loss of income caused by the violation; and

(2) noneconomic damages caused by the violation, including psychological and emotional anguish.

Sec. 161.710. REQUIRED NOTICE OF KNOWING OR INTENTIONAL VIOLATION. If a court finds that a defendant knowingly or intentionally violated Section 161.703 in an action brought under Section 161.706, the court shall notify the appropriate state regulatory authority for the defendant and the attorney general by mailing a certified copy of the signed judgment for the action to the state regulatory authority and the attorney general.

Sec. 161.711. ATTORNEY GENERAL POWERS AND DUTIES; CIVIL PENALTY. (a) The attorney general shall establish a process by which knowing or intentional violations of Section 161.703 are reported.

(b) The attorney general may bring an action against a health care provider who knowingly or intentionally violates Section 161.703 not later than the 20th anniversary of the violation to:

(1) enjoin further violations;

(2) recover any profits received due to the procedure or treatment that is the subject of the violation; and

(3) recover a civil penalty in an amount of $25,000 per violation.

(c) The attorney general shall deposit a civil penalty collected under this section in the general revenue fund.

(d) The attorney general is entitled to reasonable attorney's fees, court costs, and expenses if the attorney general prevails in an action brought under this section.

(e) Venue for an action brought under this section is in a district court of Williamson County or the county where the violation occurred.

Sec. 161.712. STATE REGULATORY AUTHORITY EMERGENCY ACTION. A violation of Section 161.703 constitutes a potential threat to public health, safety, and welfare and requires emergency action by the health care provider's appropriate state regulatory authority. On receiving notification under Section 161.710 or when the authority otherwise becomes aware of the violation, the authority shall take appropriate disciplinary action against the provider.

SECTION 2. SEVERABILITY. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

SECTION 3. TRANSITIONS. (a) Subchapter X, Chapter 161, Health and Safety Code, as added by this Act, applies only to a medical procedure or treatment performed or administered on or after the effective date of this Act.

(b) Subchapter X, Chapter 161, Health and Safety Code, as added by this Act, applies only to a cause of action that accrues on or after the effective date of this Act.

SECTION 4. EFFECTIVE DATE. This Act takes effect September 1, 2023.