Text of US SB 635 (2023)

II 118TH CONGRESS 1ST SESSION S. 635 To protect children from medical malpractice in the form of gender transition procedures. IN THE SENATE OF THE UNITED STATES MARCH 2, 2023 Mr. COTTON (for himself, Mr. BRAUN, Mr. CRUZ, Mr. DAINES, Mr. LANKFORD, Mr. MULLIN, Mr. RUBIO, and Mr. VANCE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To protect children from medical malpractice in the form of gender transition procedures. 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. 3 This Act may be cited as the ‘‘Protecting Minors 4 from Medical Malpractice Act of 2023’’. 5 SEC. 2. PRIVATE RIGHT OF ACTION FOR A GENDER-TRANSI- 6 TION PROCEDURE PERFORMED ON A MINOR. 7 (a) IN GENERAL.—A medical practitioner, in any cir- 8 cumstance described in subsection (c), who performs a 9 VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS 2 •S 635 IS gender-transition procedure on an individual who is less 1 than 18 years of age shall, as described in subsection (b), 2 be liable to the individual if injured (including any phys- 3 ical, psychological, emotional, or physiological harms) by 4 such procedure, related treatment, or the aftereffects of 5 the procedure or treatment. 6 (b) PRIVATE RIGHT OF ACTION.—An individual cov- 7 ered by subsection (a) who receives a gender-transition 8 procedure from a medical practitioner (or a representative, 9 including a legal guardian, on behalf of such individual) 10 may, not later than the day that is 30 years after the date 11 on which the individual turns 18 years of age, bring a civil 12 action against such medical practitioner in a court of com- 13 petent jurisdiction for— 14 (1) declaratory or injunctive relief; 15 (2) compensatory damages; 16 (3) punitive damages; and 17 (4) attorney’s fees and costs. 18 (c) CIRCUMSTANCES.—For the purposes of sub- 19 section (a), the circumstances described in this subsection 20 are that— 21 (1) the medical practitioner or the individual re- 22 ceiving the gender-transition procedure traveled in 23 interstate or foreign commerce, or traveled using a 24 means, channel, facility, or instrumentality of inter- 25 VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS 3 •S 635 IS state or foreign commerce, in furtherance of or in 1 connection with the conduct described in subsection 2 (a); 3 (2) the medical practitioner used a means, 4 channel, facility, or instrumentality of interstate or 5 foreign commerce in furtherance of or in connection 6 with the conduct described in subsection (a); 7 (3) any payment of any kind was made, directly 8 or indirectly, in furtherance of or in connection with 9 the conduct described in subsection (a) using any 10 means, channel, facility, or instrumentality of inter- 11 state or foreign commerce or in or affecting inter- 12 state or foreign commerce; 13 (4) the medical practitioner transmitted in 14 interstate or foreign commerce any communication 15 relating to or in furtherance of the conduct de- 16 scribed in subsection (a) using any means, channel, 17 facility, or instrumentality of interstate or foreign 18 commerce or in or affecting interstate or foreign 19 commerce by any means or in any manner, including 20 by computer, mail, wire, or electromagnetic trans- 21 mission; 22 (5) any instrument, item, substance, or other 23 object that has traveled in interstate or foreign com- 24 VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS 4 •S 635 IS merce was used to perform the conduct described in 1 subsection (a); 2 (6) the conduct described in subsection (a) oc- 3 curred within the special maritime and territorial ju- 4 risdiction of the United States, or any territory or 5 possession of the United States; or 6 (7) the conduct described in subsection (a) oth- 7 erwise occurred in or affected interstate or foreign 8 commerce. 9 SEC. 3. PRESERVING FREEDOM OF CONSCIENCE AND MED- 10 ICAL JUDGEMENT FOR MEDICAL PROVIDERS. 11 Notwithstanding any other provision of law, no provi- 12 sion of Federal law shall require, or be construed to re- 13 quire, a medical practitioner to perform a gender-transi- 14 tion procedure. 15 SEC. 4. PROHIBITION ON FUNDING FOR CERTAIN STATES. 16 Notwithstanding any other provision of law, any 17 State that requires medical practitioners to perform any 18 gender-transition procedure on an individual in the State 19 shall be ineligible to receive any Federal funding from the 20 Department of Health and Human Services. 21 SEC. 5. DEFINITIONS. 22 In this Act: 23 (1) BIOLOGICAL SEX.—The term ‘‘biological 24 sex’’ means the genetic classification of an individual 25 VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS 5 •S 635 IS as male or female, as reflected in the organization 1 of the body of such individual for a reproductive role 2 or capacity, such as through sex chromosomes, natu- 3 rally occurring sex hormones, and internal and ex- 4 ternal genitalia present at birth, without regard to 5 the subjective sense of identity of the individual. 6 (2) GENDER-TRANSITION PROCEDURE.— 7 (A) IN GENERAL.—Except as provided in 8 subparagraph (B), the term ‘‘gender-transition 9 procedure’’ means— 10 (i) the prescription or administration 11 of puberty-blocking drugs for the purpose 12 of changing the body of an individual so 13 that it conforms to the subjective sense of 14 identity of the individual, in the case such 15 identity is at odds with the individual’s bi- 16 ological sex; 17 (ii) the prescription or administration 18 of cross-sex hormones for the purpose of 19 changing the body of an individual so that 20 it conforms to the subjective sense of iden- 21 tity of the individual, in the case such 22 identity is at odds with the individual’s bi- 23 ological sex; or 24 VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS 6 •S 635 IS (iii) a surgery to change the body of 1 an individual so that it conforms to the 2 subjective sense of identity of the indi- 3 vidual, in the case such identity is at odds 4 with the individual’s biological sex. 5 (B) EXCEPTION.—The term ‘‘gender-tran- 6 sition procedure’’ does not include— 7 (i) an intervention described in sub- 8 paragraph (A) that is performed on— 9 (I) an individual with biological 10 sex characteristics that are inherently 11 ambiguous, such as those born with 12 46 XX chromosomes with virilization, 13 46 XY chromosomes with 14 undervirilization, or having both ovar- 15 ian and testicular tissue; or 16 (II) an individual with respect to 17 whom a physician has determined 18 through genetic or biochemical testing 19 that the individual does not have nor- 20 mal sex chromosome structure, sex 21 steroid hormone production, or sex 22 steroid hormone action, for a biologi- 23 cal male or biological female; 24 VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS 7 •S 635 IS (ii) the treatment of any infection, in- 1 jury, disease, or disorder that has been 2 caused or exacerbated by the performance 3 of an intervention described in subpara- 4 graph (A) without regard to whether the 5 intervention was performed in accordance 6 with State or Federal law or whether the 7 intervention is covered by the private right 8 of action under section 2; or 9 (iii) any procedure undertaken be- 10 cause the individual suffers from a physical 11 disorder, physical injury, or physical illness 12 that would, as certified by a physician, 13 place the individual in imminent danger of 14 death or impairment of major bodily func- 15 tion unless the procedure is performed. 16 (3) MEDICAL PRACTITIONER.—The term ‘‘med- 17 ical practitioner’’ means a person who is licensed, 18 certified, or otherwise authorized by the laws of a 19 State to administer health care in the ordinary 20 course of the practice of the person’s profession. 21 SEC. 6. EFFECTIVE DATE. 22 This Act shall take effect on the date of enactment 23 of this Act. 24 Æ VerDate Sep 11 2014 04:11 Mar 15, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S635.IS S635 kjohnson on DSK79L0C42PROD with BILLS