Text of MT SB 99 (2023)

Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 1 - LC 1360 _____________ BILL NO. _____________ 1 INTRODUCED BY _________________________________________________ 2 3 A BILL FOR AN ACT ENTITLED: “AN ACT PROVIDING FOR A YOUTH HEALTH PROTECTION ACT; 4 PROHIBITING CERTAIN MEDICAL AND SURGICAL TREATMENTS TO TREAT MINORS WITH GENDER 5 DYSPHORIA; PROHIBITING PUBLIC FUNDS, PROGRAMS, PROPERTY, AND EMPLOYEES FROM BEING 6 USED FOR THESE TREATMENTS; PROVIDING THAT A HEALTH CARE PROFESSIONAL WHO VIOLATES 7 THIS LAW COMMITS PROFESSIONAL MISCONDUCT; PROVIDING A PRIVATE CAUSE OF ACTION; 8 PROHIBITING DISCHARGE OF PROFESSIONAL LIABILITY VIA INSURANCE; AND PROVIDING 9 DEFINITIONS.” 10 11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: 12 13 NEW SECTION. Section 1. Short title. [Sections 1 through 6] may be cited as the "Youth Health 14 Protection Act". 15 16 NEW SECTION. Section 2. Purpose. The purpose of [sections 1 through 6] is to enhance the 17 protection of minors, pursuant to Article II, section 15, of the Montana constitution, from any form of pressure to 18 undergo irreversible medical procedures to change sex prior to attaining the age of majority. 19 20 NEW SECTION. Section 3. Definitions. As used in this part, unless the context clearly indicates 21 otherwise, the following definitions apply: 22 (1) "Female" means an individual who is a member of the female sex. 23 (2) "Gender" means the psychological, behavioral, social, and cultural aspects of being male or 24 female. 25 (3) "Gender dysphoria" is the diagnosis of gender dysphoria under the Diagnostic and Statistical 26 Manual of Mental Disorders, Fifth Edition. 27 (4) "Health care professional" means a person who is licensed, certified, or otherwise authorized 28 (Primary Sponsor) Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 2 - LC 1360 by the laws of this state to administer health care in the ordinary course of the practice of the person's 1 profession. 2 (5) "Male" means an individual who is a member of the male sex. 3 (6) "Mental health professional" means a person who is licensed to diagnose and treat mental 4 health conditions in this state. 5 (7) "Minor" means an individual under 18 years of age. 6 (8) "Perceived gender" is a person's internal sense of his or her gender. 7 (9) "Perceived sex" is a person's internal sense of his or her sex. 8 (10) "Physician" means a person who is licensed to practice medicine in this state. 9 (11) "Sex" means the biological indication of male and female in the context of reproductive 10 potential or capacity, such as sex chromosomes, naturally occurring sex hormones, gonads, and unambiguous 11 internal and external genitalia present at birth, including secondary sex characteristics, without regard to an 12 individual's psychological, chosen, or subjective experience of gender. 13 (12) "Social transitioning" means acts other than pharmaceutical or surgical interventions that are 14 offered as treatment to a minor for the minor presenting as the opposite sex or an identity other than the minor's 15 sex, including the changing of a minor's preferred pronouns or dress and the recommendation to wear clothing 16 or devices, such as binders, for the purpose of concealing a minor's secondary sex characteristics. 17 18 NEW SECTION. Section 4. Prohibitions. (1) Public funds may not be directly or indirectly used, 19 granted, paid, or distributed to any individual, entity, or organization that provides or subsidizes medication or 20 surgery as a treatment to address an inconsistency between a minor's sex and the minor's perceived gender or 21 perceived sex. 22 (2) Any individual or entity that receives state funds to pay or subsidize the treatment of minors for 23 psychological conditions, including gender dysphoria, may not use state funds to promote or advocate 24 medication or surgery as a treatment to address an inconsistency between a minor's sex and the minor's 25 perceived gender or perceived sex. 26 (3) Any amount paid by an individual or entity during a tax year for the provision of either 27 medication or surgery as a treatment to address an inconsistency between a minor's sex and the minor's 28 Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 3 - LC 1360 perceived gender or perceived sex is not tax deductible. 1 (4) The Montana medicaid program may not reimburse or provide coverage for medication or 2 surgery as a treatment to address an inconsistency between a minor's sex and the minor's perceived gender or 3 perceived sex. 4 (5) Except to the extent required by the first amendment to the United States constitution, state 5 property, facilities, or buildings may not be used to promote or advocate the use of social transitioning, 6 medication, or surgery as a treatment to address an inconsistency between a minor's sex and the minor's 7 perceived gender or perceived sex. 8 (6) A health care professional or physician employed by the state or a county or local government 9 may not provide medication or surgery as a treatment to address an inconsistency between a minor's sex and 10 the minor's perceived gender or perceived sex. 11 (7) State property, facilities, or buildings may not be used to provide medication or surgery as a 12 treatment to address an inconsistency between a minor's sex and the minor's perceived gender or perceived 13 sex. 14 (8) A state employee whose official duties include the care of minors may not, while engaged in 15 those official duties, provide or promote the use of social transitioning, medication, or surgery as a treatment to 16 address an inconsistency between a minor's sex and the minor's perceived gender or perceived sex. 17 (9) (a) Except as provided in subsection (9)(c), a person may not knowingly provide the following 18 treatment, either as a necessary or elective treatment, to a female minor to address the minor's perception that 19 her gender or sex is not female: 20 (i) surgical procedures, including a vaginectomy, hysterectomy, oophorectomy, ovariectomy, 21 reconstruction of the urethra, metoidioplasty, phalloplasty, scrotoplasty, implantation of erection or testicular 22 protheses, subcutaneous mastectomy, voice surgery, or pectoral implants; 23 (ii) supraphysiologic doses of testosterone or other androgens; or 24 (iii) puberty blockers such as GnRH agonists or other synthetic drugs that suppress the production 25 of estrogen and progesterone to delay or suppress pubertal development in female minors. 26 (b) Except as provided in subsection (9)(c), a person may not knowingly provide the following 27 treatment, either as a necessary or elective treatment, to a male minor to address the minor's perception that 28 Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 4 - LC 1360 his gender or sex is not male: 1 (i) surgical procedures, including a penectomy, orchiectomy, vaginoplasty, clitoroplasty, 2 vulvoplasty, augmentation mammoplasty, facial feminization surgery, voice surgery, thyroid cartilage reduction, 3 or gluteal augmentation; 4 (ii) supraphysiologic doses of estrogen; or 5 (iii) puberty blockers such as GnRH agonists or other synthetic drugs that suppress the production 6 of testosterone or delay or suppress pubertal development in male minors. 7 (c) The procedures listed in subsections (9)(a) and (9)(b) are prohibited only when knowingly 8 provided as treatment to address a female minor's perception that her gender or sex is not female or a male 9 minor's perception that his gender or sex is not male. Subsections (9)(a) and (9)(b) do not apply to treatment for 10 other purposes, including: 11 (i) treatment for a person born with a medically verifiable disorder of sex development, including: 12 (A) a person born with external biological sex characteristics that are irresolvably ambiguous, 13 including an individual born with 46 XX chromosomes with virilization, 46 XY chromosomes with 14 undervirilization, or having both ovarian and testicular tissue; and 15 (B) a person whom a physician has otherwise diagnosed with a disorder of sexual development in 16 which the physician has determined through genetic or biochemical testing that the person does not have 17 normal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action for a male or 18 female; and 19 (ii) treatment of any infection, injury, disease, or disorder that has been caused or exacerbated by 20 the performance of a procedure listed in subsection (9)(a) or (9)(b), whether or not the procedure was 21 performed in accordance with state and federal law and whether or not funding for the procedure is permissible 22 under state and federal law. 23 (10) If a health care professional or physician violates subsection (9)(a) or (9)(b): 24 (a) the health care professional or physician has engaged in unprofessional conduct and is subject 25 to discipline by the appropriate licensing entity or disciplinary review board with competent jurisdiction in this 26 state. That discipline must include suspension of the ability to administer health care or practice medicine for at 27 least 1 year. 28 Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 5 - LC 1360 (b) parents or guardians of the minor subject to the violation have a private cause of action for 1 damages and equitable relief as the court may determine is justified. The court may also award reasonable 2 attorney fees and court costs to a prevailing party. 3 4 NEW SECTION. Section 5. Private cause of action for subsequent harm. (1) Any health care 5 professional or physician who provides puberty blockers, cross-sex hormones, or surgical procedures as a 6 treatment to address an inconsistency between a minor's sex and the minor's perceived gender or perceived 7 sex is strictly liable to that minor if the treatment or the after-effects of the treatment result in any injury, 8 including physical, psychological, emotional, or physiological harms, within the next 25 years. 9 (2) Except as provided in subsection (3), a person who suffers an injury described in subsection 10 (1), or the person's legal guardian or estate, may bring a civil action either within 25 years from the day the 11 person reaches 18 years of age or within 4 years from the time of discovery by the injured party of both the 12 injury and the causal relationship between the treatment and the injury, whichever date is later, against the 13 offending health care professional or physician in a court of competent jurisdiction for: 14 (a) declaratory or injunctive relief; 15 (b) compensatory damages, including but not limited to pain and suffering, loss of reputation, loss 16 of income, and loss of consortium, including the loss of expectation of sharing parenthood; 17 (c) punitive damages; 18 (d) any other appropriate relief; and 19 (e) attorney fees and costs. 20 (3) (a) If, at the time the person subjected to treatment attains 18 years of age, the person is under 21 other legal disability, the limitation period in subsection (2) does not begin to run until the removal of the 22 disability. 23 (b) The limitation period in subsection (2) does not run during a time period when the individual is 24 subject to threats, intimidation, manipulation, fraudulent concealment, or fraud perpetrated by the health care 25 professional or physician who provided the treatment described in subsection (1) or by any person acting in the 26 interest of the health care professional or physician. 27 (4) A health care professional or physician may not be indemnified for potential liability under this 28 Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 6 - LC 1360 section. 1 (5) The attorney general may bring an action to enforce compliance with this section. 2 (6) This section does not deny, impair, or otherwise affect any right or authority of the attorney 3 general, the state, or any agency, officer, or employee of the state, acting under any law other than this section, 4 to institute or intervene in any proceeding. 5 6 NEW SECTION. Section 6. Prohibited insurance coverage. A professional liability insurance policy 7 issued to a health care professional or physician may not include coverage for damages assessed against the 8 health care professional or physician who provides any medication or surgical procedure described in [section 9 4] as a treatment to address an inconsistency between a minor's sex and the minor's perceived gender or 10 perceived sex. 11 12 NEW SECTION. Section 7. Medical or surgical transition for minors. Failure of a health care 13 professional, mental health professional, or physician to adhere to [section 4] constitutes unprofessional 14 conduct, with a mandatory minimum suspension of the ability to practice the person's profession for 1 year. 15 16 NEW SECTION. Section 8. Prohibited reimbursement or coverage. Pursuant to [section 4], the 17 Montana medicaid program may not reimburse or provide coverage for medication or surgery as a treatment to 18 address an inconsistency between a minor's sex and the minor's perceived gender or perceived sex. 19 20 NEW SECTION. Section 9. Codification instruction. (1) [Sections 1 through 6] are intended to be 21 codified as an integral part of Title 50, and the provisions of Title 50 apply to [sections 1 through 6]. 22 (2) [Section 7] is intended to be codified as an integral part of Title 37, chapter 2, part 3, and the 23 provisions of Title 37, chapter 2, part 3, apply to [section 7]. 24 (3) [Section 8] is intended to be codified as an integral part of Title 53, chapter 6, part 1, and the 25 provisions of Title 53, chapter 6, part 1, apply to [section 8]. 26 27 NEW SECTION. Section 10. Severability. If a part of [this act] is invalid, all valid parts that are 28 Unofficial Draft Copy **** 68th Legislature 2023 LC 1360 - 7 - LC 1360 severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, 1 the part remains in effect in all valid applications that are severable from the invalid applications. 2 - END - 3

- 2023 68th Legislature 2023 SB0099 - 1 - Authorized Print Version – SB 99 ENROLLED BILL AN ACT PROVIDING FOR A YOUTH HEALTH PROTECTION ACT; PROHIBITING CERTAIN MEDICAL AND SURGICAL TREATMENTS TO TREAT MINORS WITH GENDER DYSPHORIA; PROHIBITING PUBLIC FUNDS, PROGRAMS, PROPERTY, AND EMPLOYEES FROM BEING USED FOR THESE TREATMENTS; PROVIDING THAT A HEALTH CARE PROFESSIONAL WHO VIOLATES THIS LAW COMMITS PROFESSIONAL MISCONDUCT; PROVIDING A PRIVATE CAUSE OF ACTION; PROHIBITING DISCHARGE OF PROFESSIONAL LIABILITY VIA INSURANCE; AND PROVIDING DEFINITIONS. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: Section 1. Short title. [Sections 1 through 6] may be cited as the "Youth Health Protection Act". Section 2. Purpose. The purpose of [sections 1 through 6] is to enhance the protection of minors and their families, pursuant to Article II, section 15, of the Montana constitution, from any form of pressure to receive harmful, experimental puberty blockers and cross-sex hormones and to undergo irreversible, life-altering surgical procedures prior to attaining the age of majority. Section 3. Definitions. As used in [sections 1 through 6], unless the context clearly indicates otherwise, the following definitions apply: (1) "Female" means a member of the human species who, under normal development, produces a relatively large, relatively immobile gamete during her life cycle and has a reproductive and endocrine system oriented around the production of that gamete. (2) "Gender" means the psychological, behavioral, social, and cultural aspects of being male or female. (3) "Gender dysphoria" is the diagnosis of gender dysphoria under the Diagnostic and Statistical - 2023 68th Legislature 2023 SB0099 - 2 - Authorized Print Version – SB 99 ENROLLED BILL Manual of Mental Disorders, Fifth Edition. (4) "Health care professional" means a person who is licensed, certified, or otherwise authorized by the laws of this state to administer health care in the ordinary course of the practice of the person's profession. (5) "Male" means a member of the human species who, under normal development, produces small, mobile gametes during his life cycle, and has a reproductive and endocrine system oriented around the production of those gametes. (6) "Mental health professional" means a person who is licensed to diagnose and treat mental health conditions in this state. (7) "Minor" means an individual under 18 years of age. (8) "Physician" means a person who is licensed to practice medicine in this state. (9) "Sex" means the organization of body plans and gametes for reproduction in human beings and other organisms. In human beings, there are exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, naturally occurring sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual's psychological, behavioral, social, cultural, chosen, or subjective experience of gender. (10) "Social transitioning" means acts other than pharmaceutical or surgical interventions that are offered as treatment to a minor for the minor presenting as the opposite sex or an identity other than the minor's sex, including the changing of a minor's preferred pronouns or dress and the recommendation to wear clothing or devices, such as binders, for the purpose of concealing a minor's secondary sex characteristics. Section 4. Prohibitions. (1) (a) Except as provided in subsection (1)(c), a person may not knowingly provide the following to a female minor to address the minor's perception that her gender or sex is not female: (i) surgical procedures, including a vaginectomy, hysterectomy, oophorectomy, ovariectomy, reconstruction of the urethra, metoidioplasty, phalloplasty, scrotoplasty, implantation of erection or testicular protheses, subcutaneous mastectomy, voice surgery, or pectoral implants; (ii) supraphysiologic doses of testosterone or other androgens; or - 2023 68th Legislature 2023 SB0099 - 3 - Authorized Print Version – SB 99 ENROLLED BILL (iii) puberty blockers such as GnRH agonists or other synthetic drugs that suppress the production of estrogen and progesterone to delay or suppress pubertal development in female minors. (b) Except as provided in subsection (1)(c), a person may not knowingly provide the following to a male minor to address the minor's perception that his gender or sex is not male: (i) surgical procedures, including a penectomy, orchiectomy, vaginoplasty, clitoroplasty, vulvoplasty, augmentation mammoplasty, facial feminization surgery, voice surgery, thyroid cartilage reduction, or gluteal augmentation; (ii) supraphysiologic doses of estrogen; or (iii) puberty blockers such as GnRH agonists or other synthetic drugs that suppress the production of testosterone or delay or suppress pubertal development in male minors. (c) The procedures listed in subsections (1)(a) and (1)(b) are prohibited only when knowingly provided to address a female minor's perception that her gender or sex is not female or a male minor's perception that his gender or sex is not male. Subsections (1)(a) and (1)(b) do not apply for other purposes, including: (i) treatment for a person born with a medically verifiable disorder of sex development, including: (A) a person born with external biological sex characteristics that are irresolvably ambiguous, including an individual born with 46 XX chromosomes with virilization, 46 XY chromosomes with undervirilization, or having both ovarian and testicular tissue; and (B) a person whom a physician has otherwise diagnosed with a disorder of sexual development in which the physician has determined through genetic or biochemical testing that the person does not have normal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action for a male or female; and (ii) treatment of any infection, injury, disease, or disorder that has been caused or exacerbated by the performance of a procedure listed in subsection (1)(a) or (1)(b), whether or not the procedure was performed in accordance with state and federal law and whether or not funding for the procedure is permissible under state and federal law. (2) If a health care professional or physician violates subsection (1)(a) or (1)(b): (a) the health care professional or physician has engaged in unprofessional conduct and is subject - 2023 68th Legislature 2023 SB0099 - 4 - Authorized Print Version – SB 99 ENROLLED BILL to discipline by the appropriate licensing entity or disciplinary review board with competent jurisdiction in this state. That discipline must include suspension of the ability to administer health care or practice medicine for at least 1 year. (b) parents or guardians of the minor subject to the violation have a private cause of action for damages and equitable relief as the court may determine is justified. The court may also award reasonable attorney fees and court costs to a prevailing party. (3) Public funds may not be directly or indirectly used, granted, paid, or distributed to any individual, entity, or organization for the purposes of providing the procedures described in subsection (1)(a) or (1)(b). (4) Any individual or entity that receives state funds to pay for or subsidize the treatment of minors for psychological conditions, including gender dysphoria, may not use state funds to promote or advocate the procedures described in subsection (1)(a) or (1)(b). (5) Any amount paid by an individual or entity during a tax year for the provision of the procedures described in subsection (1)(a) or (1)(b) is not tax deductible. (6) The Montana medicaid program may not reimburse or provide coverage for the procedures described in subsection (1)(a) or (1)(b). (7) Except to the extent required by the first amendment to the United States constitution, state property, facilities, or buildings may not be knowingly used to promote or advocate the use of social transitioning, or the procedures described in subsection (1)(a) or (1)(b) to address a female minor's perception that her gender or sex is not female or a male minor's perception that his gender or sex is not male. (8) A health care professional or physician employed by the state or a county or local government may not knowingly provide the procedures described in subsection (1)(a) or (1)(b). (9) State property, facilities, or buildings may not knowingly be used to provide the procedures described in subsection (1)(a) or (1)(b). (10) A state employee whose official duties include the care of minors may not, while engaged in those official duties, knowingly provide or promote the procedures described in subsection (1)(a) or (1)(b). (11) The attorney general may bring an action to enforce compliance with this section. - 2023 68th Legislature 2023 SB0099 - 5 - Authorized Print Version – SB 99 ENROLLED BILL Section 5. Private cause of action for subsequent harm. (1) Any health care professional or physician who provides the procedures described in [section 4(1)(a) or (1)(b)] is strictly liable to that minor if the treatment or the after-effects of the treatment result in any injury, including physical, psychological, emotional, or physiological harms, within the next 25 years. (2) Except as provided in subsection (3), a person who suffers an injury described in subsection (1) or for any violation of [section 4], or the person's legal guardian or estate, may bring a civil action within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the treatment and the injury against the offending health care professional or physician in a court of competent jurisdiction for: (a) declaratory or injunctive relief; (b) compensatory damages, including but not limited to pain and suffering, loss of reputation, loss of income, and loss of consortium, including the loss of expectation of sharing parenthood; (c) punitive damages; (d) any other appropriate relief; and (e) attorney fees and costs. (3) (a) If, at the time the person subjected to treatment discovers the injury and the causal relationship between the treatment and the injury, the person is under legal disability, the limitation period in subsection (2) does not begin to run until the removal of the disability. (b) The limitation period in subsection (2) does not run during a time period when the individual is subject to threats, intimidation, manipulation, fraudulent concealment, or fraud perpetrated by the health care professional or physician who provided the treatment described in subsection (1) or by any person acting in the interest of the health care professional or physician. (4) A health care professional or physician may not be indemnified for potential liability under this section. (5) The attorney general may bring an action to enforce compliance with this section. (6) This section does not deny, impair, or otherwise affect any right or authority of the attorney general, the state, or any agency, officer, or employee of the state, acting under any law other than this section, to institute or intervene in any proceeding. - 2023 68th Legislature 2023 SB0099 - 6 - Authorized Print Version – SB 99 ENROLLED BILL Section 6. Prohibited insurance coverage. A professional liability insurance policy issued to a health care professional or physician may not include coverage for damages assessed against the health care professional or physician who provides any medication or surgical procedure described in [section 4(1)(a) or (1)(b)]. Section 7. Medical or surgical transition for minors. Failure of a health care professional, mental health professional, or physician to adhere to [section 4] constitutes unprofessional conduct, with a mandatory minimum suspension of the ability to practice the person's profession for 1 year. Section 8. Prohibited reimbursement or coverage. Pursuant to [section 4], the Montana medicaid program may not reimburse or provide coverage for any medication or surgical procedure described in [section 4(1)(a) or (1)(b)]. Section 9. Codification instruction. (1) [Sections 1 through 6] are intended to be codified as an integral part of Title 50, and the provisions of Title 50 apply to [sections 1 through 6]. (2) [Section 7] is intended to be codified as an integral part of Title 37, chapter 2, part 3, and the provisions of Title 37, chapter 2, part 3, apply to [section 7]. (3) [Section 8] is intended to be codified as an integral part of Title 53, chapter 6, part 1, and the provisions of Title 53, chapter 6, part 1, apply to [section 8]. Section 10. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. - END - I hereby certify that the within bill, SB 99, originated in the Senate. ___________________________________________ Secretary of the Senate ___________________________________________ President of the Senate Signed this _______________________________day of____________________________________, 2023. ___________________________________________ Speaker of the House Signed this _______________________________day of____________________________________, 2023. SENATE BILL NO. 99 INTRODUCED BY J. FULLER AN ACT PROVIDING FOR A YOUTH HEALTH PROTECTION ACT; PROHIBITING CERTAIN MEDICAL AND SURGICAL TREATMENTS TO TREAT MINORS WITH GENDER DYSPHORIA; PROHIBITING PUBLIC FUNDS, PROGRAMS, PROPERTY, AND EMPLOYEES FROM BEING USED FOR THESE TREATMENTS; PROVIDING THAT A HEALTH CARE PROFESSIONAL WHO VIOLATES THIS LAW COMMITS PROFESSIONAL MISCONDUCT; PROVIDING A PRIVATE CAUSE OF ACTION; PROHIBITING DISCHARGE OF PROFESSIONAL LIABILITY VIA INSURANCE; AND PROVIDING DEFINITIONS.