Text of NC H 786 (2023)

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2023 H D HOUSE BILL DRH40396-NB-138 Short Title: Youth Health Protection Act. (Public) Sponsors: Representative Kidwell. Referred to: *DRH40396-NB-138* A BILL TO BE ENTITLED 1 AN ACT TO PROTECT MINORS FROM ADMINISTRATION OF PUBERTY BLOCKERS 2 AND CROSS-SEX HORMONES AND OTHER RELATED ACTIONS, PROCEDURES, 3 AND TREATMENTS AND TO PROHIBIT OBSCENITY ON SMART PHONES FOR 4 MINORS. 5 Whereas, the State of North Carolina has a compelling government interest in 6 protecting the health and safety of its citizens, especially vulnerable children; and 7 Whereas, the sex of a person is the biological state of being female or male, based on 8 sex organs, chromosomes, and endogenous hormone profiles, and is genetically encoded into a 9 person at the moment of conception, and it cannot be changed; and 10 Whereas, some individuals, including minors, may experience discordance between 11 their sex and their internal sense of identity, and individuals who experience severe psychological 12 distress as a result of this discordance may be diagnosed with gender dysphoria; and 13 Whereas, the cause of the individual's impression of discordance between sex and 14 identity is unknown, and the diagnosis is based exclusively on the individual's self-report of 15 feelings and beliefs; and 16 Whereas, this internal sense of discordance is not permanent or fixed, but to the 17 contrary, numerous studies have shown that a substantial majority of children who experience 18 discordance between their sex and identity will outgrow the discordance once they go through 19 puberty and will eventually have an identity that aligns with their sex; and 20 Whereas, as a result, taking a "wait-and-see" approach to children who reveal signs 21 of gender nonconformity results in a large majority of those children resolving to an identity 22 congruent with their sex by late adolescence; and 23 Whereas, some in the medical community are aggressively pushing for interventions 24 on minors that medically alter the child's hormonal balance and remove healthy external and 25 internal sex organs when the child expresses a desire to appear as a sex different from his or her 26 own; and 27 Whereas, this course of treatment for minors commonly begins with encouraging and 28 assisting the child to socially transition to dressing and presenting as the opposite sex. In the case 29 of prepubertal children, as puberty begins, doctors then administer long-acting GnRH agonist 30 (puberty blockers) that suppress the pubertal development of the child. This use of puberty 31 blockers for gender nonconforming children is experimental and not FDA-approved; and 32 Whereas, after puberty blockade, the child is later administered "cross-sex" hormonal 33 treatments that induce the development of secondary sex characteristics of the other sex, such as 34 causing the development of breasts and wider hips in male children taking estrogen and greater 35 H.B. 786 Apr 18, 2023 HOUSE PRINCIPAL CLERK General Assembly Of North Carolina Session 2023 Page 2 DRH40396-NB-138 muscle mass, bone density, body hair, and a deeper voice in female children taking testosterone. 1 Some children are administered these hormones independent of any prior pubertal blockade; and 2 Whereas, the final phase of treatment is for the individual to undergo cosmetic and 3 other surgical procedures, often to create an appearance similar to that of the opposite sex. These 4 surgical procedures may include a mastectomy to remove a female adolescent's breasts and 5 "bottom surgery" that removes a minor's healthy reproductive organs and creates an artificial 6 form aiming to approximate the appearance of the genitals of the opposite sex; and 7 Whereas, for minors who are placed on puberty blockers that inhibit their bodies from 8 experiencing the natural process of sexual development, the overwhelming majority will 9 continue down a path toward cross-sex hormones and cosmetic surgery; and 10 Whereas, this unproven, poorly studied series of interventions results in numerous 11 harmful effects for minors, as well as risks of effects simply unknown due to the new and 12 experimental nature of these interventions; and 13 Whereas, among the known harms from puberty blockers is diminished bone density; 14 the full effect of puberty blockers on brain development and cognition is yet unknown, though 15 reason for concern is now present. There is no research on the long-term risks to minors of 16 persistent exposure to puberty blockers. With the administration of cross-sex hormones comes 17 increased risks of cardiovascular disease, thromboembolic stroke, asthma, COPD, and cancer; 18 and 19 Whereas, puberty blockers prevent gonadal maturation and thus render patients taking 20 these drugs infertile. Introducing cross-sex hormones to children with immature gonads as a 21 direct result of pubertal blockade is expected to cause irreversible sterility. Sterilization is also 22 permanent for those who undergo surgery to remove reproductive organs, and such persons are 23 likely to suffer through a lifetime of complications from the surgery, infections, and other 24 difficulties requiring yet more medical intervention; and 25 Whereas, several studies demonstrate that hormonal and surgical interventions often 26 do not resolve the underlying psychological issues affecting the individual. For example, 27 individuals who undergo cross-sex cosmetic surgical procedures have been found to suffer from 28 elevated mortality rates higher than the general population. They experience significantly higher 29 rates of substance abuse, depression, and psychiatric hospitalizations; and 30 Whereas, minors, and often their parents, are unable to comprehend and fully 31 appreciate the risk and life implications–including permanent sterility–that result from the use of 32 puberty blockers, cross-sex hormones, and surgical procedures; and 33 Whereas, it is of grave concern to this legislature that the medical community is 34 allowing individuals who experience distress with their biological sex to be subjects of 35 irreversible and drastic non-genital gender reassignment surgery and irreversible, permanently 36 sterilizing genital gender reassignment surgeries, despite the lack of studies showing that such 37 extreme interventions have benefits that outweigh their risks or chances of cure. In fact, they may 38 increase the risk of suicide; and 39 Whereas, for these reasons, the decision to pursue a course of hormonal and surgical 40 interventions to address a discordance between the individual's sex and sense of identity should 41 not be presented to or determined for minors who are incapable of comprehending the negative 42 implications and life-course difficulties attending to these interventions; Now, therefore, 43 The General Assembly of North Carolina enacts: 44 SECTION 1.(a) Chapter 90 of the General Statutes is amended by adding a new 45 Article to read: 46 "Article 1M. 47 "Youth Health Protection Act. 48 "§ 90-21.140. Definitions. 49 The following definitions apply in this Article: 50 General Assembly Of North Carolina Session 2023 DRH40396-NB-138 Page 3 (1) Government agent. – Any agent, employee, volunteer, or contractor of a 1 public child services agency, private child placing agency, court, or school 2 district. 3 (2) Medical professional. – Any physician, surgeon, physician assistant, nurse, 4 clinical nurse specialist, nurse practitioner, anesthetist, psychiatrist, or 5 medical assistant licensed under this Chapter. 6 (3) Mental health care professional or counselor. – Any licensed medical, mental 7 health, or human services professional licensed under this Chapter, including 8 any psychologist, social worker, psychiatric nurse, allied mental health and 9 human services professional, licensed marriage and family therapist, certified 10 rehabilitation counselor, licensed clinical mental health counselor, or any of 11 their respective interns or trainees, or any other person designated or licensed 12 as a mental health or human service professional. 13 (4) Minor. – Any individual who is below 18 years of age. 14 (5) Political subdivision. – Any division of local government, county, city, 15 assessment district, municipal corporation, special purpose district, board, 16 department, commission, or any division of local government delegated the 17 right to exercise part of the sovereign power of that subdivision. 18 (6) Sex. – The biological state of being female or male, based on sex organs, 19 chromosomes, and endogenous hormone profiles, without regard to an 20 individual's psychological, chosen, or subjective experience of gender. 21 "§ 90-21.141. Prohibition of certain practices and health care services. 22 (a) Notwithstanding any other provision of law, it shall be unlawful for any medical 23 professional or mental health care professional or counselor to knowingly engage in any of the 24 following practices upon a minor, or cause them to be performed for the purpose of attempting 25 to alter the appearance of or affirm the minor's perception of his or her gender or sex, if that 26 appearance or perception is inconsistent with the minor's sex: 27 (1) Performing surgeries that sterilize, including castration, vasectomy, 28 hysterectomy, oophorectomy, orchiectomy, or penectomy. 29 (2) Performing surgeries that artificially construct tissue with the appearance of 30 genitalia that differs from the individual's sex, including metoidioplasty, 31 phalloplasty, and vaginoplasty. 32 (3) Performing a mastectomy. 33 (4) Prescribing, administering, or supplying gonadotropin releasing hormone 34 analogues or other synthetic drugs used to stop luteinizing hormone and 35 follicle stimulating hormone secretion, synthetic antiandrogen drugs used to 36 block the androgen receptor, or any drug to suppress or delay normal puberty. 37 (5) Prescribing, administering, or supplying testosterone, estrogen, or 38 progesterone to a minor in an amount greater than would normally be 39 produced endogenously in a healthy individual of that individual's age and 40 sex. 41 (6) Removing any otherwise healthy or nondiseased body part or tissue. 42 (b) It shall be unlawful for any medical professional or mental health care professional 43 or counselor to knowingly engage in conduct that aids or abets the practices described in 44 subsection (a) of this section to a minor. This section may not be construed to impose liability on 45 any speech protected by federal or State law. 46 (c) A medical professional or mental health care professional or counselor who engages 47 in any of the practices identified in subsection (a) of this section or causes them to be performed 48 shall be considered to have engaged in unprofessional conduct and shall be subject to revocation 49 of licensure for a minimum of one year and other appropriate discipline by the medical 50 professional's licensing or certifying board. The medical professional shall also be subject to a 51 General Assembly Of North Carolina Session 2023 Page 4 DRH40396-NB-138 civil penalty of up to one thousand dollars ($1,000) per occurrence. The clear proceeds of civil 1 penalties provided for in this subsection shall be remitted to the Civil Penalty and Forfeiture Fund 2 in accordance with G.S. 115C-457.2. 3 (d) This section does not apply to any of the following: 4 (1) The good-faith medical decision of a parent or guardian of a minor born with 5 a medically verifiable genetic disorder of sexual development, including any 6 of the following: 7 a. A minor with external biological sex characteristics that are 8 irresolvably ambiguous, such as a minor born having 46 XX 9 chromosomes with virilization, 46 XY chromosomes with 10 under-virilization, or having both ovarian and testicular tissue. 11 b. When a physician has otherwise diagnosed a disorder of sexual 12 development, in which the physician has determined through genetic 13 testing that the minor does not have the normal sex chromosome 14 structure, sex steroid hormone production, or sex steroid hormone 15 action for male or female sexes. 16 (2) The treatment of any infection, disease, or disorder that has been caused or 17 exacerbated by the performance of a procedure described in subsection (a) of 18 this section, whether or not the procedures were performed in accordance with 19 State or federal law. 20 (3) Any procedure undertaken because an individual suffers from a physical 21 disorder, physical injury, or physical illness that is certified by a physician and 22 that would place the individual in imminent danger of death or impairment of 23 major bodily function unless surgery is performed. 24 (e) Notwithstanding any other provision of law, it shall be unlawful for any health care 25 provider, as defined in G.S. 90-21.11, that receives State funds to furnish, provide, or perform 26 any health care service that constitutes the performance of or preparation for a gender transition 27 procedure to a minor. 28 "§ 90-21.142. Counseling. 29 A State office, agency, political subdivision of the State or local government, or any 30 organization with authority to license or discipline the members of a profession may not prohibit, 31 impose any penalty, or take any adverse action against any individual who gives or receives 32 counsel, advice, guidance, or any other speech or communication, whether described as therapy 33 or provided for a fee, consistent with conscience or religious belief. 34 "§ 90-21.143. Protection of parental rights. 35 (a) Parents, guardians, or custodians, in exercising the fundamental right to care for their 36 child, may withhold consent for any treatment, activity, or mental health care services that are 37 designed and intended to form their child's conceptions of sex and gender or to treat gender 38 dysphoria or gender nonconformity. The State, its agents, and political subdivisions shall not 39 infringe upon or impede the exercise of this right under this section. 40 (b) No government agent, nor any employee of this State, any political subdivision of this 41 State, or any other governmental entity, except for law enforcement personnel, shall encourage 42 or coerce a minor to withhold information from the minor's parent. Nor shall any such employee 43 withhold from a minor's parents information that is relevant to the physical or mental health of 44 their child and of a sort that parents interested in and responsible for the well-being of a minor 45 reasonably would demand and should be apprised of. Such conduct shall be grounds for 46 discipline of the employee, in addition to any other remedies provided to a parent under this 47 Article. 48 (c) If a government agent has knowledge that a minor under its care or supervision has 49 exhibited symptoms of gender dysphoria, gender nonconformity, or otherwise demonstrates a 50 desire to be treated in a manner incongruent with the minor's sex, the government agent or entity 51 General Assembly Of North Carolina Session 2023 DRH40396-NB-138 Page 5 with knowledge of that circumstance shall immediately notify, in writing, each of the minor's 1 parents, guardians, or custodians. The notice shall describe all of the relevant circumstances with 2 reasonable specificity. 3 "§ 90-21.144. Whistleblower protection. 4 (a) No person shall be discriminated against in any manner because the person does any 5 of the following: 6 (1) Provided, caused to be provided, or takes steps to provide or cause to be 7 provided to his or her employer, the Attorney General, any State agency, the 8 United States Department of Health and Human Services, or any other federal 9 agency any information or an act or omission that is a violation of any 10 provision of this Article. 11 (2) Testified or prepared to testify in a proceeding concerning a violation of this 12 Article. 13 (3) Assisted or participated in a proceeding concerning a violation of this Article. 14 (b) Unless a disclosure or report of information is specifically prohibited by law, no 15 person shall be discriminated against in any manner because the person disclosed any information 16 under this Article that the person believes evinces any of the following: 17 (1) Any violation of law, rule, or regulation. 18 (2) Any violation of any standard of care or other ethical guidelines for the 19 provision of any health care service. 20 (3) Gross mismanagement, a gross waste of funds, an abuse of authority, or a 21 substantial and specific danger to public health or safety. 22 "§ 90-21.145. Civil remedies. 23 (a) A civil action for compensatory or special damages, injunctive relief, or any other 24 relief available under law may be brought by any person for any violation of any provision of 25 this Article against the clinic, health care system, medical professional, or other person 26 responsible for the violation. 27 (b) Any party aggrieved or harmed by any violation of this Article shall be required to 28 bring suit for violation of this Article no later than two years after the day the cause of action 29 accrued. Minors injured by practices prohibited under this Article may bring an action during 30 their minority through a parent and may bring an action in their own name upon reaching majority 31 at any time from that date until 20 years from the date the minor attained the age of majority. 32 (c) Persons who prevail on a claim brought pursuant to this section shall be entitled, upon 33 the finding of a violation, to recover the following: 34 (1) Monetary damages, including all psychological, emotional, and physical harm 35 suffered. 36 (2) Total costs of the action and reasonable attorneys' fees. 37 (3) Any other appropriate relief. 38 (d) Standing to assert a claim or defense under this section shall be governed by the 39 general rules of standing. 40 "§ 90-21.146. Preemption. 41 (a) A political subdivision of this State is preempted from enacting, adopting, 42 maintaining, or enforcing any order, ordinance, rule, regulation, policy, or other similar measure 43 that prohibits, restricts, limits, controls, directs, or otherwise interferes with the professional 44 conduct and judgment of a mental health care professional or counselor, including speech, 45 undertaken within the course of treatment and communication with clients, patients, other 46 persons, or the public, including therapies, counseling, referrals, and education. 47 (b) The Attorney General or a mental health care professional or counselor may bring an 48 action for an injunction to prevent or restrain violations of this section. A mental health care 49 professional may recover reasonable costs and attorneys' fees incurred in obtaining an injunction 50 under this section. 51 General Assembly Of North Carolina Session 2023 Page 6 DRH40396-NB-138 (c) Sovereign and governmental immunity to suit and from liability is waived and 1 abolished to the extent of the liability created by this section." 2 SECTION 1.(b) Article 6 of Chapter 143C of the General Statutes is amended by 3 adding a new section to read: 4 "§ 143C-6-5.6. Limitation on use of State funds for gender transition procedures. 5 No State funds may be used, directly or indirectly, for the performance of or in furtherance 6 of gender transition procedures or to support the administration of any governmental health plan 7 or government-offered insurance policy offering gender transition procedures." 8 SECTION 2. Chapter 48A of the General Statutes is amended by adding a new 9 Article to read: 10 "Article 3. 11 "Children's Default to Safety Act. 12 "Part 1. Electronic Device Obscenity Filter. 13 "§ 48A-20. Short title. 14 This Article may be cited as the "Children's Default to Safety Act." 15 "§ 48A-21. Definitions. 16 The following definitions apply in this Article: 17 (1) Activate. – The process of powering on an electronic device and associating 18 it with a new user account. 19 (2) Electronic device. – A tablet or a smart phone. 20 (3) Internet. – A publicly available and accessible domain. 21 (4) Manufacturer. – A person that is engaged in the business of manufacturing an 22 electronic device and has an agent registered to conduct business in this State. 23 (5) Obscenity filter. – Software installed on an electronic device that is capable 24 of preventing the electronic device from accessing or displaying obscenity 25 through the internet or any applications owned and controlled by the 26 manufacturer and installed on the device. 27 (6) Smart phone. – An electronic device that combines a cell phone with a 28 handheld computer, typically offering internet access, data storage, text, and 29 email capabilities. 30 (7) Tablet. – An electronic device equipped with a mobile operating system, 31 touchscreen display, and rechargeable battery, typically offering internet 32 access. 33 "§ 48A-22. Obscenity filter required. 34 A manufacturer shall manufacture an electronic device that, when activated in the State, 35 automatically enables an obscenity filter that does all of the following: 36 (1) Prevents the user from accessing or downloading material that is obscene to 37 minors on mobile data networks, applications owned and controlled by the 38 manufacturer, and wired or wireless internet networks. 39 (2) Notifies a user of the electronic device when the obscenity filter blocks the 40 device from downloading an application or accessing a website. 41 (3) Gives a user with a passcode the opportunity to unblock a filtered application 42 or website. 43 (4) Reasonably precludes a user other than a user with a passcode the opportunity 44 to deactivate, modify, or uninstall the obscenity filter. 45 "§ 48A-23. Liability; limitations. 46 (a) A manufacturer of an electronic device is liable if, on activation of an electronic 47 device sold and activated in the State, the electronic device or manufacturer does the following: 48 (1) The electronic device does not enable an obscenity filter that prevents the 49 display of obscene material to minors in such a way that minors will be able 50 General Assembly Of North Carolina Session 2023 DRH40396-NB-138 Page 7 to view the material, or the manufacturer knowingly or in reckless disregard 1 provides the passcode to a minor to unblock the obscenity filter. 2 (2) The electronic device displays or disseminates obscene material to a minor, 3 including any performance that is obscene to minors. 4 (b) Nothing in this Article shall affect any other private right of action existing under 5 other State or federal law, including contract law. 6 (c) This section shall not apply to a manufacturer that makes a good-faith effort to provide 7 a device that, on activation of the device in the State, automatically enables a generally accepted 8 and commercially reasonable method of filtration in accordance with this Article and industry 9 standards. 10 (d) A person who is not a minor's parent or legal guardian may not provide a minor with 11 the passcode to remove the obscenity filter. 12 "§ 48A-24. Damages. 13 If a court finds that a manufacturer is liable pursuant to this Article, the court may award the 14 plaintiff actual damages. When the amount of actual damages is difficult to ascertain due to the 15 nature of the injury, the court, in its discretion, may award liquidated damages in the amount of 16 ten thousand dollars ($10,000) to the injured party. A class action may also be brought under this 17 Article. 18 "§ 48A-25. Civil action for enforcement. 19 (a) Except as provided in subsection (h) of this section, a manufacturer that is found liable 20 under this Article shall be assessed a civil penalty not to exceed ten thousand dollars ($10,000) 21 per violation, plus costs and attorneys' fees, in addition to any other applicable penalty under 22 State law. The civil penalty may be assessed and recovered in a civil action brought in any court 23 of competent jurisdiction. For purposes of assessing a civil penalty under this section, a 24 manufacturer is considered to have committed a separate violation for each electronic device sold 25 and activated in the State. 26 (b) To prevail under this section, a plaintiff shall prove and a court shall find, by clear 27 and convincing evidence, that a manufacturer manufactured a device on or after October 1, 2023, 28 and that it was activated in violation of this Article. 29 (c) The plaintiff shall prove all other elements by a preponderance of the evidence. 30 (d) For each violation, the court shall specify the amount of the civil penalty, filing fees, 31 costs, and attorneys' fees. 32 (e) In assessing the amount of a civil penalty for a violation of this Article, the court shall 33 consider all of the following: 34 (1) Nature and extent of the violation. 35 (2) Number and severity of the violations. 36 (3) Economic effect of the penalty on the violator. 37 (4) Good-faith measures the violator took to comply with this Article. 38 (5) Timing of the measures the violator took to comply with this Article. 39 (6) Willfulness of the violator's misconduct. 40 (7) Deterrent effect that the imposition of the penalty would have on both the 41 violator and the regulated community as a whole. 42 (8) Any other factors determined by the court to be pertinent. 43 (f) Actions pursuant to this section may be brought by the Attorney General in the name 44 of the people of the State or by a private individual in accordance with subsection (g) of this 45 section. 46 (g) A private individual may bring an action in the public interest to establish liability 47 under this Article, if that individual has served the alleged violator and the Attorney General a 48 notice of an alleged violation of this section and the Attorney General has not provided a letter 49 to the noticing party within 45 days after the day on which the Attorney General receives the 50 notice of an alleged violation indicating either (i) an action is currently being pursued or will be 51 General Assembly Of North Carolina Session 2023 Page 8 DRH40396-NB-138 pursued by the Attorney General regarding the violation or (ii) the Attorney General believes that 1 there is no merit to the action. If an action is commenced, the plaintiff may amend the complaint 2 to include additional violations in the claim that are discovered in the discovery process. 3 (h) A manufacturer who makes a good-faith effort to install and enable on activation in 4 the State a generally accepted and commercially reasonable method of filtration in accordance 5 with this Article and industry standards is not liable under this Article. 6 "Part 2. Public Display or Dissemination of Obscene Material to Minors. 7 "§ 48A-30. Public display or dissemination of obscene material to minors. 8 (a) A person having custody, control, or supervision of any commercial establishment or 9 newsstand may not knowingly or purposefully do any of the following: 10 (1) Display obscene material to minors in such a way that minors, as a part of the 11 invited public, will be able to view the material. However, a person is 12 considered not to have displayed obscene material to minors if the material is 13 kept behind devices commonly known as blinder racks so that the lower 14 two-thirds of the material is not exposed to view or other reasonable efforts 15 were made to prevent view of the material by a minor. 16 (2) Sell, furnish, present, distribute, or otherwise disseminate to a minor or allow 17 a minor to view, with or without consideration, any obscene material. 18 (3) Present to a minor or participate in presenting to a minor, with or without 19 consideration, any performance that is obscene to minors. 20 (b) A person does not violate this section if any of the following are satisfied: 21 (1) The person had reasonable cause to believe the minor was 18 years of age. For 22 the purposes of this subdivision, "reasonable cause" includes, but is not 23 limited to, being shown a draft card, driver's license, marriage license, birth 24 certificate, education identification card, governmental identification card, 25 tribal identification card, or other official or apparently official card or 26 document purporting to establish that the person is 18 years of age. 27 (2) The person is, or is acting as, an employee of a bona fide public school, 28 college, or university or a retail outlet affiliated with and serving the 29 educational purposes of the school, college, or university and the material or 30 performance was disseminated in accordance with policies approved by the 31 governing body of the institution. 32 (3) The person is an officer, director, trustee, or employee of a public library or 33 museum and the material or performance was acquired by the library or 34 museum and disseminated in accordance with policies approved by the 35 governing body of the library or museum. 36 (4) An exhibition in a state of nudity is for a bona fide scientific or medical 37 purpose for a bona fide school, library, or museum. 38 (5) The person is a retail sale clerk with no financial interest in the material or 39 performance or in the establishment displaying or selling the material or 40 performance." 41 SECTION 3. If any provision of this act or its application is held invalid, the 42 invalidity does not affect other provisions or applications of this act that can be given effect 43 without the invalid provisions or application, and, to this end, the provisions of this act are 44 severable. 45 SECTION 4. Section 2 of this act becomes effective January 1, 2024, and applies to 46 electronic devices manufactured in or outside this State or sold and activated in this State on or 47 after that date. The remainder of this act becomes effective October 1, 2023. 48