Text of US SB 1595 (2023)

II 118TH CONGRESS 1ST SESSION S. 1595 To prohibit taxpayer-funded gender transition procedures, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 15, 2023 Mr. MARSHALL (for himself, Mrs. BLACKBURN, Mr. BRAUN, Mr. CRAMER, Mr. DAINES, Mrs. HYDE-SMITH, Mr. LEE, Mr. MULLIN, Mr. RISCH, Mr. RUBIO, Mr. WICKER, and Mr. HAWLEY) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To prohibit taxpayer-funded gender transition procedures, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘End Taxpayer Funding of Gender Experimentation Act 5 of 2023’’. 6 (b) TABLE OF CONTENTS.—The table of contents of 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1595 IS TITLE I—PROHIBITING FEDERALLY FUNDED GENDER TRANSITION PROCEDURES Sec. 101. Prohibiting taxpayer-funded gender transition procedures. Sec. 102. Amendment to table of chapters. TITLE II—APPLICATION UNDER THE AFFORDABLE CARE ACT Sec. 201. Clarifying application of prohibition to premium credits and cost- sharing reductions under ACA. TITLE I—PROHIBITING FEDER- 1 ALLY FUNDED GENDER TRAN- 2 SITION PROCEDURES 3 SEC. 101. PROHIBITING TAXPAYER-FUNDED GENDER TRAN- 4 SITION PROCEDURES. 5 Title 1, United States Code, is amended by adding 6 at the end the following new chapter: 7 ‘‘CHAPTER 4—PROHIBITING TAXPAYER- 8 FUNDED GENDER TRANSITION PROCE- 9 DURES 10 ‘‘Sec. ‘‘301. Prohibition on funding for gender transition procedures. ‘‘302. Prohibition on funding for health benefits plans that cover gender transi- tion procedures. ‘‘303. Limitation on Federal facilities and employees. ‘‘304. Construction relating to separate coverage. ‘‘305. Construction relating to the use of non-Federal funds for health coverage. ‘‘306. Construction relating to complications arising from gender transition pro- cedures. ‘‘307. Definitions. ‘‘§ 301. Prohibition on funding for gender transition 11 procedures 12 ‘‘No funds authorized or appropriated by Federal 13 law, and none of the funds in any trust fund to which 14 funds are authorized or appropriated by Federal law, shall 15 be expended for any gender transition procedures. 16 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1595 IS ‘‘§ 302. Prohibition on funding for health benefits 1 plans that cover gender transition proce- 2 dures 3 ‘‘No funds authorized or appropriated by Federal 4 law, and none of the funds in any trust fund to which 5 funds are authorized or appropriated by Federal law, shall 6 be expended for health benefits coverage that includes cov- 7 erage of gender transition procedures. 8 ‘‘§ 303. Limitation on Federal facilities and employees 9 ‘‘No health care service furnished— 10 ‘‘(1) by or in a health care facility owned or op- 11 erated by the Federal Government; or 12 ‘‘(2) by any physician or other individual em- 13 ployed by the Federal Government to provide health 14 care services within the scope of the physician’s or 15 individual’s employment, 16 may include gender transition procedures. 17 ‘‘§ 304. Construction relating to separate coverage 18 ‘‘Nothing in this chapter shall be construed as pro- 19 hibiting any individual, entity, or State or locality from 20 purchasing separate coverage for gender transition proce- 21 dures or health benefits coverage that includes gender 22 transition procedures so long as such coverage is paid for 23 entirely using only funds not authorized or appropriated 24 by Federal law and such coverage shall not be purchased 25 using matching funds required for a federally subsidized 26 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1595 IS program, including a State’s or locality’s contribution of 1 Medicaid matching funds. 2 ‘‘§ 305. Construction relating to the use of non-Fed- 3 eral funds for health coverage 4 ‘‘Nothing in this chapter shall be construed as re- 5 stricting the ability of any non-Federal health benefits cov- 6 erage provider from offering coverage for gender transi- 7 tion procedures, or the ability of a State or locality to con- 8 tract separately with such a provider for such coverage, 9 so long as only funds not authorized or appropriated by 10 Federal law are used and such coverage shall not be pur- 11 chased using matching funds required for a federally sub- 12 sidized program, including a State’s or locality’s contribu- 13 tion of Medicaid matching funds. 14 ‘‘§ 306. Construction relating to complications arising 15 from gender transition procedures 16 ‘‘Nothing in this chapter shall be construed to apply 17 to the treatment of any infection, injury, disease, or dis- 18 order that has been caused by or exacerbated by the per- 19 formance of a gender transition procedure. 20 ‘‘§ 307. Definitions 21 ‘‘For purposes of this chapter: 22 ‘‘(1) BIOLOGICAL SEX.—The term ‘biological 23 sex’ means the biological indication of male or fe- 24 male in the context of reproductive potential or ca- 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1595 IS pacity, such as sex chromosomes, naturally occurring 1 sex hormones, gonads, and non-ambiguous internal 2 and external genitalia present at birth, without re- 3 gard to an individual’s psychological, chosen, or sub- 4 jective experience of gender. 5 ‘‘(2) CROSS-SEX HORMONES.—The term ‘cross- 6 sex hormones’ means— 7 ‘‘(A) testosterone or other androgens given 8 to biological females at doses that are pro- 9 foundly larger or more potent than would nor- 10 mally occur naturally in healthy biological fe- 11 males; and 12 ‘‘(B) estrogen given to biological males at 13 doses that are profoundly larger or more potent 14 than would normally occur naturally in healthy 15 biological males. 16 ‘‘(3) GENDER.—The term ‘gender’ means the 17 psychological, behavioral, social, and cultural aspects 18 of being male or female. 19 ‘‘(4) GENDER TRANSITION.—The term ‘gender 20 transition’ means the process in which an individual 21 goes from identifying with and living as a gender 22 that corresponds to his or her biological sex to iden- 23 tifying with and living as a gender different from his 24 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1595 IS or her biological sex, and may involve social, legal, 1 or physical changes. 2 ‘‘(5) GENDER TRANSITION PROCEDURE.— 3 ‘‘(A) IN GENERAL.—The term ‘gender 4 transition procedure’ means any medical or sur- 5 gical service that seeks— 6 ‘‘(i) to alter or remove physical or an- 7 atomical characteristics or features that 8 are typical for the individual’s biological 9 sex; or 10 ‘‘(ii) to instill or create physiological 11 or anatomical characteristics that resemble 12 a sex different from the individual’s birth 13 sex. 14 ‘‘(B) INCLUSIONS.—For purposes of sub- 15 paragraph (A), the term ‘medical or surgical 16 service’ includes— 17 ‘‘(i) physician’s services; 18 ‘‘(ii) inpatient and outpatient hospital 19 services; 20 ‘‘(iii) prescribed drugs relating to gen- 21 der transition; 22 ‘‘(iv) a medical service that provides— 23 ‘‘(I) puberty-blocking drugs; 24 ‘‘(II) cross-sex hormones; or 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1595 IS ‘‘(III) other mechanisms to pro- 1 mote the development of feminizing or 2 masculinizing features (in the opposite 3 sex); and 4 ‘‘(v) gender transition surgery. 5 ‘‘(C) EXCLUSIONS.—The term ‘gender 6 transition procedure’ does not include— 7 ‘‘(i) services to individuals born with a 8 medically verifiable disorder of sex develop- 9 ment, including an individual with external 10 biological sex characteristics that are 11 irresolvably ambiguous, such as an indi- 12 vidual born with 46 XX chromosomes with 13 virilization, an individual born with 46 XY 14 chromosomes with undervirilization, or an 15 individual born having both ovarian and 16 testicular tissue; 17 ‘‘(ii) services provided when a physi- 18 cian has otherwise diagnosed a disorder of 19 sexual development in which the physician 20 has determined through genetic or bio- 21 chemical testing that the individual does 22 not have normal sex chromosome struc- 23 ture, sex steroid hormone production, or 24 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1595 IS sex steroid hormone action for a biological 1 male or biological female; or 2 ‘‘(iii) the treatment of any infection, 3 injury, disease, or disorder that has been 4 caused by or exacerbated by the perform- 5 ance of gender transition procedures, 6 whether or not the gender transition proce- 7 dure was performed in accordance with 8 State and Federal law or whether or not 9 funding for the gender transition proce- 10 dure is permissible under this chapter. 11 ‘‘(6) GENDER TRANSITION SURGERY.— 12 ‘‘(A) IN GENERAL.—The term ‘gender 13 transition surgery’ means any medical or sur- 14 gical service that seeks to surgically alter or re- 15 move healthy physical or anatomical character- 16 istics or features that are typical for the indi- 17 vidual’s biological sex in order to instill or cre- 18 ate physiological or anatomical characteristics 19 that resemble a sex different from the individ- 20 ual’s birth sex. 21 ‘‘(B) INCLUSIONS.—The term ‘gender 22 transition surgery’ includes genital gender tran- 23 sition surgery and non-genital gender transition 24 surgery. 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1595 IS ‘‘(C) EXCLUSIONS.—The term ‘gender 1 transition surgery’ does not include any proce- 2 dure undertaken because the individual suffers 3 from a physical disorder, physical injury, or 4 physical illness that would, as certified by a 5 physician, place the individual in imminent dan- 6 ger of death or impairment of major bodily 7 function unless the procedure is performed, un- 8 less such procedure is performed for the pur- 9 pose of a gender transition or for the alleviation 10 of psychological or mental distress. 11 ‘‘(7) GENITAL GENDER TRANSITION SUR- 12 GERY.—The term ‘genital gender transition surgery’ 13 means a surgical procedure performed for the pur- 14 pose of assisting an individual with a gender transi- 15 tion, including— 16 ‘‘(A) for biologically male patients, a 17 penectomy, orchiectomy, vaginoplasty, 18 clitoroplasty, and vulvoplasty; and 19 ‘‘(B) for biologically female patients, a 20 hysterectomy/ovariectomy, reconstruction of the 21 fixed part of the urethra with or without a 22 metoidioplasty or a phalloplasty, vaginectomy, 23 scrotoplasty, and implantation of erection or 24 testicular prostheses. 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1595 IS ‘‘(8) NON-GENITAL GENDER TRANSITION SUR- 1 GERY.—The term ‘non-genital gender transition sur- 2 gery’ means a surgical procedure performed for the 3 purpose of assisting an individual with a gender 4 transition, including— 5 ‘‘(A) for biologically male patients, aug- 6 mentation mammoplasty, facial feminization 7 surgery, liposuction, lipofilling, voice surgery, 8 thyroid cartilage reduction, gluteal augmenta- 9 tion (implants/lipofilling), hair reconstruction, 10 and various aesthetic procedures; and 11 ‘‘(B) for biologically female patients, sub- 12 cutaneous mastectomy, voice surgery, 13 liposuction, lipofilling, pectoral implants, and 14 various aesthetic procedures. 15 ‘‘(9) PUBERTY-BLOCKING DRUGS.—The term 16 ‘puberty-blocking drugs’ means— 17 ‘‘(A) Gonadotropin-releasing hormone 18 (GnRH) analogues or other synthetic drugs 19 used in biological males to stop luteinizing hor- 20 mone secretion and therefore testosterone secre- 21 tion; and 22 ‘‘(B) synthetic drugs used in biological fe- 23 males that stop the production of estrogen and 24 progesterone, when used to delay or suppress 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1595 IS pubertal development in children for the pur- 1 pose of assisting an individual with a gender 2 transition.’’. 3 SEC. 102. AMENDMENT TO TABLE OF CHAPTERS. 4 The table of chapters for title 1, United States Code, 5 is amended by adding at the end the following new item: 6 ‘‘4. Prohibiting taxpayer-funded gender transition pro- cedures ....................................................................... 301’’. TITLE II—APPLICATION UNDER 7 THE AFFORDABLE CARE ACT 8 SEC. 201. CLARIFYING APPLICATION OF PROHIBITION TO 9 PREMIUM CREDITS AND COST-SHARING RE- 10 DUCTIONS UNDER ACA. 11 (a) IN GENERAL.— 12 (1) DISALLOWANCE OF REFUNDABLE CREDIT 13 AND COST-SHARING REDUCTIONS FOR COVERAGE 14 UNDER QUALIFIED HEALTH PLAN WHICH PROVIDES 15 COVERAGE FOR GENDER PROCEDURES.— 16 (A) IN GENERAL.—Subparagraph (A) of 17 section 36B(c)(3) of the Internal Revenue Code 18 of 1986 is amended by inserting before the pe- 19 riod at the end the following: ‘‘or any health 20 plan that includes coverage for gender transi- 21 tion procedures (other than any procedure de- 22 scribed in section 306 of title 1, United States 23 Code)’’. 24 VerDate Sep 11 2014 21:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1595 IS (B) OPTION TO PURCHASE OR OFFER SEP- 1 ARATE COVERAGE OR PLAN.—Paragraph (3) of 2 section 36B(c) of such Code is amended by 3 adding at the end the following new subpara- 4 graph: 5 ‘‘(C) SEPARATE COVERAGE OR PLAN FOR 6 GENDER TRANSITION PROCEDURES AL- 7 LOWED.— 8 ‘‘(i) OPTION TO PURCHASE SEPARATE 9 COVERAGE OR PLAN.—Nothing in subpara- 10 graph (A) shall be construed as prohibiting 11 any individual from purchasing separate 12 coverage for gender transition procedures 13 described in such subparagraph, or a 14 health plan that includes such gender tran- 15 sition procedures, so long as no credit is 16 allowed under this section with respect to 17 the premiums for such coverage or plan. 18 ‘‘(ii) OPTION TO OFFER COVERAGE OR 19 PLAN.—Nothing in subparagraph (A) shall 20 restrict any non-Federal health insurance 21 issuer offering a health plan from offering 22 separate coverage for gender transition 23 procedures described in such subpara- 24 graph, or a plan that includes such gender 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1595 IS transition procedures, so long as premiums 1 for such separate coverage or plan are not 2 paid for with any amount attributable to 3 the credit allowed under this section (or 4 the amount of any advance payment of the 5 credit under section 1412 of the Patient 6 Protection and Affordable Care Act).’’. 7 (2) DISALLOWANCE OF SMALL EMPLOYER 8 HEALTH INSURANCE EXPENSE CREDIT FOR PLAN 9 WHICH INCLUDES COVERAGE FOR GENDER TRANSI- 10 TION PROCEDURES.—Subsection (h) of section 45R 11 of the Internal Revenue Code of 1986 is amended— 12 (A) by striking ‘‘Any term’’ and inserting 13 the following: 14 ‘‘(1) IN GENERAL.—Any term’’; and 15 (B) by adding at the end the following new 16 paragraph: 17 ‘‘(2) EXCLUSION OF HEALTH PLANS INCLUDING 18 COVERAGE FOR GENDER TRANSITION PROCE- 19 DURES.— 20 ‘‘(A) IN GENERAL.—The term ‘qualified 21 health plan’ does not include any health plan 22 that includes coverage for gender transition 23 procedures (other than any procedure described 24 in section 306 of title 1, United States Code). 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 14 •S 1595 IS ‘‘(B) SEPARATE COVERAGE OR PLAN FOR 1 GENDER TRANSITION PROCEDURES AL- 2 LOWED.— 3 ‘‘(i) OPTION TO PURCHASE SEPARATE 4 COVERAGE OR PLAN.—Nothing in subpara- 5 graph (A) shall be construed as prohibiting 6 any employer from purchasing for its em- 7 ployees separate coverage for gender tran- 8 sition procedures described in such sub- 9 paragraph, or a health plan that includes 10 such gender transition procedures, so long 11 as no credit is allowed under this section 12 with respect to the employer contributions 13 for such coverage or plan. 14 ‘‘(ii) OPTION TO OFFER COVERAGE OR 15 PLAN.—Nothing in subparagraph (A) shall 16 restrict any non-Federal health insurance 17 issuer offering a health plan from offering 18 separate coverage for gender transition 19 procedures described in such subpara- 20 graph, or a plan that includes such gender 21 transition procedures, so long as such sep- 22 arate coverage or plan is not paid for with 23 any employer contribution eligible for the 24 credit allowed under this section.’’. 25 VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB 15 •S 1595 IS (b) APPLICATION TO MULTI-STATE PLANS.—Section 1 1334(a) of Public Law 111–148 (42 U.S.C. 18054(a)) is 2 amended by adding at the end the following new para- 3 graph: 4 ‘‘(7) COVERAGE CONSISTENT WITH FEDERAL 5 POLICY REGARDING GENDER TRANSITION PROCE- 6 DURES.—In entering into contracts under this sub- 7 section, the Director shall ensure that no multi-State 8 qualified health plan offered in an Exchange pro- 9 vides health benefits coverage for which the expendi- 10 ture of Federal funds is prohibited under chapter 4 11 of title 1, United States Code.’’. 12 (c) EFFECTIVE DATE.—The amendments made by 13 subsection (a) shall apply to taxable years ending after 14 the date that is 1 year after the date of enactment of this 15 Act, but only with respect to plan years beginning after 16 such date, and the amendment made by subsection (b) 17 shall apply to plan years beginning after such date. 18 Æ VerDate Sep 11 2014 03:37 May 25, 2023 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6301 E:\BILLS\S1595.IS S1595 pbinns on DSKJLVW7X2PROD with $$_JOB