Text of AR SB 199 (2023)

Stricken language would be deleted from and underlined language would be added to present law. *JLC038* 2/6/2023 12:04:54 PM JLC038 State of Arkansas 1 94th General Assembly A Bill 2 Regular Session, 2023 SENATE BILL 199 3 4 By: Senator G. Stubblefield 5 By: Representative Bentley 6 7 For An Act To Be Entitled 8 AN ACT CONCERNING MEDICAL MALPRACTICE AND GENDER 9 TRANSITION IN MINORS; TO CREATE THE PROTECTING MINORS 10 FROM MEDICAL MALPRACTICE ACT OF 2023; AND FOR OTHER 11 PURPOSES. 12 13 14 Subtitle 15 CONCERNING MEDICAL MALPRACTICE AND GENDER 16 TRANSITION IN MINORS; AND TO CREATE THE 17 PROTECTING MINORS FROM MEDICAL 18 MALPRACTICE ACT OF 2023. 19 20 21 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 22 23 24 SECTION 1. Arkansas Code Title 16, Chapter 114, is amended to add an 25 additional subchapter to read as follows: 26 Subchapter 4 – Protecting Minors from Medical Malpractice Act of 2023 27 28 16-114-401. Definitions. 29 As used in this subchapter: 30 (1)(A) “Gender transition procedure” means any medical or 31 surgical service, including without limitation physician's services, 32 inpatient and outpatient hospital services, or prescribed drugs related to 33 gender transition that seeks to: 34 (i) Alter or remove physical or anatomical 35 characteristics or features that are typical for the individual's biological 36 SB199 2 2/6/2023 12:04:54 PM JLC038 sex; or 1 (ii) Instill or create physiological or anatomical 2 characteristics that resemble a sex different from the individual's 3 biological sex, including without limitation medical services that provide 4 puberty-blocking drugs, cross-sex hormones, or other mechanisms to promote 5 the development of feminizing or masculinizing features in the opposite 6 biological sex, or genital or nongenital gender reassignment surgery 7 performed for the purpose of assisting an individual with a gender 8 transition. 9 (B) “Gender transition procedure” does not include: 10 (i) Services to persons born with a medically 11 verifiable disorder of sex development, including a person with external 12 biological sex characteristics that are irresolvably ambiguous, such as those 13 born with 46 XX chromosomes with virilization, 46 XY chromosomes with 14 undervirilization, or having both ovarian and testicular tissue; 15 (ii) Services provided when a physician has 16 otherwise diagnosed a disorder of sexual development that the physician has 17 determined through genetic or biochemical testing that the person does not 18 have normal sex chromosome structure, sex steroid hormone production, or sex 19 steroid hormone action; 20 (iii) The treatment of any infection, injury, 21 disease, or disorder that has been caused by or exacerbated by the 22 performance of gender transition procedures, whether or not the gender 23 transition procedure was performed in accordance with state and federal law 24 or whether or not funding for the gender transition procedure is permissible 25 under this subchapter; or 26 (iv) Any procedure undertaken because the individual 27 suffers from a physical disorder, physical injury, or physical illness that 28 would, as certified by a physician, place the individual in imminent danger 29 of death or impairment of major bodily function unless surgery is performed; 30 (2) “Healthcare professional” means the same as defined in § 20- 31 9-1501; 32 (3) “Mental health professional” means a psychiatrist or 33 psychologist licensed, certified, or otherwise authorized by the laws of this 34 state to administer mental health care in the ordinary course of the practice 35 of his or her profession; 36 SB199 3 2/6/2023 12:04:54 PM JLC038 (4) “Minor” means an individual who is younger than eighteen 1 (18) years of age; and 2 (5) “Public funds” means the same as defined in § 20-9-1501. 3 4 16-114-402. Right of action. 5 (a) A healthcare professional who performs a gender transition 6 procedure on a minor is liable to the minor if the minor is injured, 7 including without limitation any physical, psychological, emotional, or 8 physiological injury, by the gender transition procedure, related treatment, 9 or the after effects of the gender transition procedure or related treatment. 10 (b)(1) A minor injured as provided under subsection (a) of this 11 section, or a representative of a minor injured as provided under subsection 12 (a) of this section who receives a gender transition procedure, including 13 without limitation a parent or legal guardian of a minor injured as provided 14 under subsection (a) of this section who receives a gender transition 15 procedure acting on behalf of the minor, may bring a civil action against the 16 healthcare professional who performed the gender transition procedure on the 17 minor in a court of competent jurisdiction for: 18 (A) Declaratory or injunctive relief; 19 (B) Compensatory damages; 20 (C) Punitive damages; and 21 (D) Attorney’s fees and costs. 22 (2) A civil action under subdivision (b)(1) of this section 23 shall be filed not later than thirty (30) years after the date on which the 24 minor turns eighteen (18) years of age, or would have turned eighteen (18) 25 years of age if the minor died before turning eighteen (18) years of age. 26 27 16-114-403. Safe harbor. 28 (a) It is a defense to a civil action brought under § 16-114-402 that, 29 before performing a gender transition procedure on a minor: 30 (1) The healthcare professional documented the minor’s perceived 31 gender or perceived sex for two (2) continuous years, and the minor’s 32 perceived gender or perceived sex was invariably inconsistent with the 33 minor’s biological sex throughout the two (2) years; 34 (2) To the extent that the minor suffered from a mental health 35 concern, at least two (2) healthcare professionals, including at least one 36 SB199 4 2/6/2023 12:04:54 PM JLC038 (1) mental health professional, certified in writing that the gender 1 transition procedure was the only way to treat the mental health concern; 2 (3) At least two (2) healthcare professionals, including at 3 least one (1) mental health professional, certified in writing that the minor 4 suffered from no other mental health concerns, including without limitation 5 depression, eating disorders, autism, attention deficit hyperactivity 6 disorder, intellectual disability, or psychotic disorders; and 7 (4) The healthcare professional received the voluntary and 8 informed consent of the parent or legal guardian of the minor and the minor 9 as provided in subsection (b) of this section. 10 (b) Consent to a gender transition procedure is voluntary and informed 11 only if, at least thirty (30) days before the first treatment of the gender 12 transition procedure and during every subsequent medical visit for treatment 13 during the following six (6) months, the minor and the minor’s parent or 14 legal guardian receives verbal notice and written notice in at least 14- 15 point, proportionally spaced typeface that state the following facts, 16 verbatim: 17 "If your child begins one (1) of these treatments, it may 18 actually worsen the discordance and thus increase the likelihood that your 19 child will need additional and more serious interventions to address the 20 worsening condition. For example, if your child begins socially 21 transitioning or taking puberty blockers, that treatment may significantly 22 increase the likelihood that your child’s discordance will worsen and lead to 23 your child eventually seeking cross-sex hormones or even surgery to remove 24 some of your child’s body parts. 25 Sweden, Finland, and the United Kingdom have conducted systematic 26 reviews of evidence and concluded that there is no evidence that the 27 potential benefits of puberty blockers and cross-sex hormones for this 28 purpose outweigh the known or assumed risks. 29 Medical authorities in Sweden, Finland, and the United Kingdom 30 have since recommended psychotherapy as the first line of treatment for youth 31 gender dysphoria, with drugs and surgeries reserved as a measure of last 32 resort. Medical authorities in France have advised “great caution” when 33 prescribing hormones for gender dysphoria. 34 There are people who underwent gender transition treatments as 35 minors and later regretted that decision and the physical harm that these 36 SB199 5 2/6/2023 12:04:54 PM JLC038 treatments caused, and the total percentage of people who experience this 1 regret is unknown. Some estimate that the rate is below two percent (2%), 2 but that estimate is based on studies done on adults who transitioned as 3 adults or on minors who transitioned under highly restrictive and controlled 4 conditions. 5 Sometimes gender transition treatments have been proposed as a 6 way to reduce the chances of a minor committing suicide due to discordance 7 between the minor’s sex and his or her perception, but the rates of actual 8 suicide from this discordance remain extremely low. Furthermore, as 9 recognized by health authorities in Europe, there is no evidence that 10 suicidality is caused by “unaffirmed” gender or that gender transition 11 treatments are causally linked to a reduction in serious suicidal attempts or 12 ideations. 13 For puberty blockers: 14 Puberty blockers are not approved for this purpose by the United 15 States Food and Drug Administration, which is the federal agency that 16 determines which drugs are safe and effective for humans to use. Claims 17 about puberty blockers’ safety and efficacy are based on their use for 18 precocious puberty, a different condition in which normal puberty is allowed 19 to resume once the patient reaches the appropriate age. Studies on the 20 benefits of using puberty blockers for gender dysphoria are notoriously weak. 21 Puberty blockers are not fully reversible because, among other risks, puberty 22 blockers may intensify a minor’s discordance and cause it to persist. 23 Puberty blockers increase the risk of your child being sterilized, meaning 24 that he or she will never be able to have children. Puberty blockers may 25 also cause diminished bone density for your child, increasing the risk of 26 fracture and early osteoporosis. Puberty blockers may also prevent your 27 child from ever being able to engage in sexual activity or achieve orgasm for 28 the rest of your child’s life. There is no research on the long-term risks 29 to minors of persistent exposure to puberty blockers. The full effects of 30 puberty blockers on brain development and cognition are unknown. 31 For cross-sex hormones: 32 The use of cross-sex hormones in males is associated with 33 numerous health risks, such as thromboembolic disease, including without 34 limitation blood clots; cholelithiasis, including gallstones; coronary artery 35 disease, including without limitation heart attacks; macroprolactinoma, which 36 SB199 6 2/6/2023 12:04:54 PM JLC038 is a tumor of the pituitary gland; cerebrovascular disease, including without 1 limitation strokes; hypertriglyceridemia, which is an elevated level of 2 triglycerides in the blood; breast cancer; and irreversible infertility. 3 The use of cross-sex hormones in females is associated with risks of 4 erythrocytosis, which is an increase in red blood cells; severe liver 5 dysfunction; coronary artery disease, including without limitation heart 6 attacks; hypertension; and increased risk of breast and uterine cancers. 7 Once a minor begins cross-sex hormones, the minor may need to continue taking 8 those hormones for many years and possibly for the remainder of the minor’s 9 life. The cost of these hormones may be tens of thousands of dollars. If 10 the use of cross-sex hormones leads to surgery, the total cost of 11 transitioning may exceed one hundred thousand dollars ($100,000). 12 For surgical procedures: 13 The dangers, risks, complications, and long-term concerns 14 associated with these types of procedures are almost entirely unknown. There 15 are no long-term studies on either the effectiveness or safety of these 16 surgical procedures." 17 18 SECTION 2. Arkansas Code Title 17, Chapter 80, Subchapter 1, is 19 amended to add an additional section to read as follows: 20 17-80-122. Preserving freedom of conscience and medical judgment for 21 healthcare professionals. 22 State law shall not require, or be construed to require, a healthcare 23 professional to perform a gender transition procedure. 24 25 26 27 28 29 30 31 32 33 34 35 36

Stricken language would be deleted from and underlined language would be added to present law. Act 274 of the Regular Session *JLC038* 02-16-2023 09:35:05 JLC038 State of Arkansas As Engrossed: S2/16/23 1 94th General Assembly A Bill 2 Regular Session, 2023 SENATE BILL 199 3 4 By: Senator G. Stubblefield 5 By: Representative Bentley 6 7 For An Act To Be Entitled 8 AN ACT CONCERNING MEDICAL MALPRACTICE AND GENDER 9 TRANSITION IN MINORS; TO CREATE THE PROTECTING MINORS 10 FROM MEDICAL MALPRACTICE ACT OF 2023; AND FOR OTHER 11 PURPOSES. 12 13 14 Subtitle 15 CONCERNING MEDICAL MALPRACTICE AND GENDER 16 TRANSITION IN MINORS; AND TO CREATE THE 17 PROTECTING MINORS FROM MEDICAL 18 MALPRACTICE ACT OF 2023. 19 20 21 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 22 23 24 SECTION 1. Arkansas Code Title 16, Chapter 114, is amended to add an 25 additional subchapter to read as follows: 26 Subchapter 4 – Protecting Minors from Medical Malpractice Act of 2023 27 28 16-114-401. Definitions. 29 As used in this subchapter: 30 (1)(A) “Gender transition procedure” means any medical or 31 surgical service, including without limitation physician's services, 32 inpatient and outpatient hospital services, or prescribed drugs related to 33 gender transition that seeks to: 34 (i) Alter or remove physical or anatomical 35 characteristics or features that are typical for the individual's biological 36 As Engrossed: S2/16/23 SB199 2 02-16-2023 09:35:05 JLC038 sex; or 1 (ii) Instill or create physiological or anatomical 2 characteristics that resemble a sex different from the individual's 3 biological sex, including without limitation medical services that provide 4 puberty-blocking drugs, cross-sex hormones, or other mechanisms to promote 5 the development of feminizing or masculinizing features in the opposite 6 biological sex, or genital or nongenital gender reassignment surgery 7 performed for the purpose of assisting an individual with a gender 8 transition. 9 (B) “Gender transition procedure” does not include: 10 (i) Services to persons born with a medically 11 verifiable disorder of sex development, including a person with external 12 biological sex characteristics that are irresolvably ambiguous, such as those 13 born with 46 XX chromosomes with virilization, 46 XY chromosomes with 14 undervirilization, or having both ovarian and testicular tissue; 15 (ii) Services provided when a physician has 16 otherwise diagnosed a disorder of sexual development that the physician has 17 determined through genetic or biochemical testing that the person does not 18 have normal sex chromosome structure, sex steroid hormone production, or sex 19 steroid hormone action; 20 (iii) The treatment of any infection, injury, 21 disease, or disorder that has been caused by or exacerbated by the 22 performance of gender transition procedures, whether or not the gender 23 transition procedure was performed in accordance with state and federal law 24 or whether or not funding for the gender transition procedure is permissible 25 under this subchapter; or 26 (iv) Any procedure undertaken because the individual 27 suffers from a physical disorder, physical injury, or physical illness that 28 would, as certified by a physician, place the individual in imminent danger 29 of death or impairment of major bodily function unless surgery is performed; 30 (2) “Healthcare professional” means the same as defined in § 20- 31 9-1501; 32 (3) “Mental health professional” means a psychiatrist or 33 psychologist licensed, certified, or otherwise authorized by the laws of this 34 state to administer mental health care in the ordinary course of the practice 35 of his or her profession; 36 As Engrossed: S2/16/23 SB199 3 02-16-2023 09:35:05 JLC038 (4) “Minor” means an individual who is younger than eighteen 1 (18) years of age; and 2 (5) “Public funds” means the same as defined in § 20-9-1501. 3 4 16-114-402. Right of action. 5 (a) A healthcare professional who performs a gender transition 6 procedure on a minor is liable to the minor if the minor is injured, 7 including without limitation any physical, psychological, emotional, or 8 physiological injury, by the gender transition procedure, related treatment, 9 or the after effects of the gender transition procedure or related treatment. 10 (b)(1) A minor injured as provided under subsection (a) of this 11 section, or a representative of a minor injured as provided under subsection 12 (a) of this section who receives a gender transition procedure, including 13 without limitation a parent or legal guardian of a minor injured as provided 14 under subsection (a) of this section who receives a gender transition 15 procedure acting on behalf of the minor, may bring a civil action against the 16 healthcare professional who performed the gender transition procedure on the 17 minor in a court of competent jurisdiction for: 18 (A) Declaratory or injunctive relief; 19 (B) Compensatory damages; 20 (C) Punitive damages; and 21 (D) Attorney’s fees and costs. 22 (2) A civil action under subdivision (b)(1) of this section 23 shall be filed not later than fifteen (15) years after the date on which the 24 minor turns eighteen (18) years of age, or would have turned eighteen (18) 25 years of age if the minor died before turning eighteen (18) years of age. 26 27 16-114-403. Safe harbor. 28 (a) It is a defense to a civil action brought under § 16-114-402 that, 29 before performing a gender transition procedure on a minor: 30 (1) The healthcare professional documented the minor’s perceived 31 gender or perceived sex for two (2) continuous years, and the minor’s 32 perceived gender or perceived sex was invariably inconsistent with the 33 minor’s biological sex throughout the two (2) years; 34 (2) To the extent that the minor suffered from a mental health 35 concern, at least two (2) healthcare professionals, including at least one 36 As Engrossed: S2/16/23 SB199 4 02-16-2023 09:35:05 JLC038 (1) mental health professional, certified in writing that the gender 1 transition procedure was the only way to treat the mental health concern; 2 (3) At least two (2) healthcare professionals, including at 3 least one (1) mental health professional, certified in writing that the minor 4 suffered from no other mental health concerns, including without limitation 5 depression, eating disorders, autism, attention deficit hyperactivity 6 disorder, intellectual disability, or psychotic disorders; and 7 (4) The healthcare professional received the voluntary and 8 informed consent of the parent or legal guardian of the minor and the minor 9 as provided in subsection (b) of this section. 10 (b) Consent to a gender transition procedure is voluntary and informed 11 only if, at least thirty (30) days before the first treatment of the gender 12 transition procedure and during every subsequent medical visit for treatment 13 during the following six (6) months, the minor and the minor’s parent or 14 legal guardian receives verbal notice and written notice in at least 14- 15 point, proportionally spaced typeface that state the following facts, 16 verbatim: 17 "If your child begins one (1) of these treatments, it may 18 actually worsen the discordance and thus increase the likelihood that your 19 child will need additional and more serious interventions to address the 20 worsening condition. For example, if your child begins socially 21 transitioning or taking puberty blockers, that treatment may significantly 22 increase the likelihood that your child’s discordance will worsen and lead to 23 your child eventually seeking cross-sex hormones or even surgery to remove 24 some of your child’s body parts. 25 Sweden, Finland, and the United Kingdom have conducted systematic 26 reviews of evidence and concluded that there is no evidence that the 27 potential benefits of puberty blockers and cross-sex hormones for this 28 purpose outweigh the known or assumed risks. 29 Medical authorities in Sweden, Finland, and the United Kingdom 30 have since recommended psychotherapy as the first line of treatment for youth 31 gender dysphoria, with drugs and surgeries reserved as a measure of last 32 resort. Medical authorities in France have advised “great caution” when 33 prescribing hormones for gender dysphoria. 34 There are people who underwent gender transition treatments as 35 minors and later regretted that decision and the physical harm that these 36 As Engrossed: S2/16/23 SB199 5 02-16-2023 09:35:05 JLC038 treatments caused, and the total percentage of people who experience this 1 regret is unknown. Some estimate that the rate is below two percent (2%), 2 but that estimate is based on studies done on adults who transitioned as 3 adults or on minors who transitioned under highly restrictive and controlled 4 conditions. 5 Sometimes gender transition treatments have been proposed as a 6 way to reduce the chances of a minor committing suicide due to discordance 7 between the minor’s sex and his or her perception, but the rates of actual 8 suicide from this discordance remain extremely low. Furthermore, as 9 recognized by health authorities in Europe, there is no evidence that 10 suicidality is caused by “unaffirmed” gender or that gender transition 11 treatments are causally linked to a reduction in serious suicidal attempts or 12 ideations. 13 For puberty blockers: 14 Puberty blockers are not approved for this purpose by the United 15 States Food and Drug Administration, which is the federal agency that 16 determines which drugs are safe and effective for humans to use. Claims 17 about puberty blockers’ safety and efficacy are based on their use for 18 precocious puberty, a different condition in which normal puberty is allowed 19 to resume once the patient reaches the appropriate age. Studies on the 20 benefits of using puberty blockers for gender dysphoria are notoriously weak. 21 Puberty blockers are not fully reversible because, among other risks, puberty 22 blockers may intensify a minor’s discordance and cause it to persist. 23 Puberty blockers increase the risk of your child being sterilized, meaning 24 that he or she will never be able to have children. Puberty blockers may 25 also cause diminished bone density for your child, increasing the risk of 26 fracture and early osteoporosis. Puberty blockers may also prevent your 27 child from ever being able to engage in sexual activity or achieve orgasm for 28 the rest of your child’s life. There is no research on the long-term risks 29 to minors of persistent exposure to puberty blockers. The full effects of 30 puberty blockers on brain development and cognition are unknown. 31 For cross-sex hormones: 32 The use of cross-sex hormones in males is associated with 33 numerous health risks, such as thromboembolic disease, including without 34 limitation blood clots; cholelithiasis, including gallstones; coronary artery 35 disease, including without limitation heart attacks; macroprolactinoma, which 36 As Engrossed: S2/16/23 SB199 6 02-16-2023 09:35:05 JLC038 is a tumor of the pituitary gland; cerebrovascular disease, including without 1 limitation strokes; hypertriglyceridemia, which is an elevated level of 2 triglycerides in the blood; breast cancer; and irreversible infertility. 3 The use of cross-sex hormones in females is associated with risks of 4 erythrocytosis, which is an increase in red blood cells; severe liver 5 dysfunction; coronary artery disease, including without limitation heart 6 attacks; hypertension; and increased risk of breast and uterine cancers. 7 Once a minor begins cross-sex hormones, the minor may need to continue taking 8 those hormones for many years and possibly for the remainder of the minor’s 9 life. The cost of these hormones may be tens of thousands of dollars. If 10 the use of cross-sex hormones leads to surgery, the total cost of 11 transitioning may exceed one hundred thousand dollars ($100,000). 12 For surgical procedures: 13 The dangers, risks, complications, and long-term concerns 14 associated with these types of procedures are almost entirely unknown. There 15 are no long-term studies on either the effectiveness or safety of these 16 surgical procedures." 17 18 SECTION 2. Arkansas Code Title 17, Chapter 80, Subchapter 1, is 19 amended to add an additional section to read as follows: 20 17-80-122. Preserving freedom of conscience and medical judgment for 21 healthcare professionals. 22 State law shall not require, or be construed to require, a healthcare 23 professional to perform a gender transition procedure. 24 25 26 27 /s/G. Stubblefield 28 29 30 APPROVED: 3/13/23 31 32 33 34 35 36