85R9724 MCK-D
By: Garcia S.B. No. 1342
A BILL TO BE ENTITLED
AN ACT
relating to prohibited nonconsensual genital surgery on certain
minors with intersex traits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 266.001 through 266.012, Family Code,
are designated as Subchapter A, Chapter 266, Family Code, and a
heading is added to Subchapter A to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS; EDUCATIONAL SERVICES; MEDICAL
CARE
SECTION 2. Chapter 266, Family Code, is amended by adding
Subchapter B to read as follows:
SUBCHAPTER B. MEDICAL PROCEDURES AND TREATMENTS RELATED TO
INTERSEX TRAITS
Sec. 266.051. DEFINITIONS. In this subchapter:
(1) "Intersex child" means an individual who is
younger than 18 years of age and either:
(A) has inborn chromosomal, gonadal, genital, or
endocrine characteristics, or a combination of those
characteristics, that are not suited to the typical definition of
male or female or are atypical for the sex assigned; or
(B) is considered by a medical professional to
have inborn chromosomal, gonadal, genital, or endocrine
characteristics that are ambiguous or atypical for the sex
assigned.
(2) "Medical procedure or treatment related to an
intersex trait" includes genital surgery, gonadal surgery, or
hormonal treatment to treat or modify an intersex trait.
(3) "Medically necessary" means a medical procedure or
treatment immediately necessary to treat an injury, illness,
disease, or condition affecting the intersex child's health that if
delayed would adversely affect the intersex child's physical
health.
Sec. 266.052. REQUIREMENTS FOR CERTAIN MEDICAL PROCEDURES
OR TREATMENTS. A physician may not perform a medical procedure or
treatment related to an intersex trait on a foster child younger
than 12 years of age unless:
(1) the procedure or treatment is medically necessary
for the physical health of the child and the department consents to
the procedure or treatment; or
(2) the procedure or treatment is not medically
necessary for the physical health of the child and a court
authorizes the procedure or treatment as provided under this
subchapter.
Sec. 266.053. COURT APPROVAL OF CERTAIN MEDICAL PROCEDURES
OR TREATMENTS. (a) If the department or an intersex child's
physician wants the child to undergo a medical procedure or
treatment related to an intersex trait that is not medically
necessary for the physical health of the child, the department or
physician may file a petition with the court having continuing
jurisdiction over the intersex child seeking court approval of the
procedure or treatment.
(b) The court shall hold a hearing to determine whether the
proposed medical procedure or treatment related to an intersex
trait is in the child's best interest.
(c) The child must be represented by an attorney at the
hearing. The attorney for the child must:
(1) possess adequate knowledge of intersex traits, the
intersex population, and the range of medical procedures or
treatments that may be pursued in connection with the child's
intersex trait, including the option to delay any procedure or
treatment;
(2) communicate with the child, to the extent possible
given the child's age, regarding:
(A) the nature of the proposed medical procedure
or treatment;
(B) the extent to which the proposed medical
procedure or treatment is irreversible; and
(C) the projected outcome of, the possible risks
associated with, and the alternatives, including delay, to the
proposed medical procedure or treatment;
(3) interview the child, to the extent possible given
the child's age, to determine the child's wishes regarding the
pursuit or delay of any proposed medical procedure or treatment;
(4) assist the child, to the extent possible given the
child's age, in assessing the child's desires related to the child's
medical care and in communicating the child's desires to the court;
and
(5) for a child younger than 12 years of age, argue
against a proposed medical procedure or treatment that is not
medically necessary for the physical health of the child.
(d) Any party to the suit may submit to the court a report or
introduce evidence from a qualified expert on:
(1) intersex traits and the intersex population in
general;
(2) the child's specific intersex traits;
(3) the range of medical procedures and treatments
that may be pursued in connection with the child's intersex traits,
including delay;
(4) the specific medical procedure or treatment
proposed for the child, including the risks and anticipated
benefits associated with the procedure or treatment and the
possibility that the child's ultimate gender identity may differ
from the sex assigned;
(5) the extent to which the medical procedure or
treatment:
(A) is irreversible; and
(B) may safely be delayed until the child is of an
age to participate in the decision-making process;
(6) the physician's responsibilities to obtain
informed consent from the child and the child's parent or guardian
and whether those responsibilities have been adequately
discharged; and
(7) the public statements of intersex individuals or
patient advocates regarding Subdivisions (1)-(6).
(e) Following the hearing, the court shall determine
whether the proposed medical procedure or treatment related to an
intersex trait is in the child's best interest and render an order
with specific findings on:
(1) whether clear and convincing evidence establishes
that the short-term or long-term physical benefits of the proposed
medical procedure or treatment outweigh the short-term or long-term
physical risks;
(2) whether clear and convincing evidence establishes
that the short-term and long-term psychological benefits of the
proposed medical procedure or treatment outweigh the short-term or
long-term psychological risks;
(3) the extent to which the proposed medical procedure
or treatment would limit the child's future options for:
(A) fertility;
(B) development or construction of
female-typical characteristics;
(C) development or construction of male-typical
characteristics; and
(D) preservation of body characteristics
unaltered by decisions the child did not initiate; and
(4) whether clear and convincing evidence establishes
that any limitation identified under Subdivision (3) is justified
by an urgent need for the proposed medical procedure or treatment.
(f) If the requirements of Sections 266.054(1) and (2) are
satisfied, the court may consider the child's consent to the
proposed medical procedure or treatment related to an intersex
trait as clear and convincing evidence for purposes of the court's
best-interest determination under Subsection (e).
Sec. 266.054. FOSTER CHILD'S CONSENT TO MEDICAL PROCEDURE
OR TREATMENT. Notwithstanding Section 32.003 or 266.004 or other
law, a foster child 12 years of age or older may consent to a medical
procedure or treatment related to an intersex trait if the child:
(1) has been evaluated by a physician and a
psychologist, both of whom have had previous experience treating
patients with intersex traits, and the physician and psychologist
determine the child has the maturity necessary to make decisions
regarding the child's medical care; and
(2) has been provided with the information necessary
to enable the child to provide voluntary and informed consent to the
proposed medical procedure or treatment, including:
(A) the nature of the proposed medical procedure
or treatment, including whether and to what extent the proposed
procedure or treatment is irreversible;
(B) the projected outcome of the proposed medical
procedure or treatment, including whether the benefits of the
procedure or treatment are medical, psychological, or social, and
the strength of the evidence supporting the claims that the
procedure or treatment provides each of those benefits;
(C) the possible risks associated with the
proposed medical procedure or treatment, including, as applicable,
loss of reproductive capacity, loss of sexual function or
sensation, and the child's ultimate gender identity differing from
the sex assigned; and
(D) the alternatives to the proposed medical
procedure or treatment, including delaying the procedure or
treatment.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.