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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 502
October 18, 2023 - Introduced by Representatives ROZAR, BEHNKE, BRANDTJEN,
DITTRICH, DUCHOW, GOEBEN, GUNDRUM, GUSTAFSON, MAXEY, NEDWESKI,
O'CONNOR, SCHRAA, WICHGERS, GREEN and RETTINGER, cosponsored by
Senators HUTTON, KAPENGA, NASS, TOMCZYK, BRADLEY and FELZKOWSKI.
Referred to Committee on Judiciary.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to create 895.039 of the statutes; relating to: a civil cause of action for
a minor injured by a gender transition procedure.
Analysis by the Legislative Reference Bureau
This bill establishes a civil cause of action against a health care provider who
performs a gender transition procedure, as defined in the bill, on an individual who
is under 18 years of age and who is injured, including any physical, psychological,
emotional, or physiological injury, by the gender transition procedure or related
treatment or the aftereffects of the gender transition procedure or related treatment.
Under the bill, such an action must be commenced before the individual attains the
age of 33 years.
The bill provides that it is a defense to an action under the bill if all of the
following occur before a health care provider performs a gender transition procedure
on an individual who is under 18 years of age:
1. The health care provider documents the individual's perceived gender or
perceived sex for at least two continuous years, and the individual's perceived gender
or perceived sex is invariably inconsistent with the individual's biological sex
throughout the two-year period.
2. To the extent that the individual suffers from a mental health concern, at
least one mental health professional and one other health care provider certifies in
writing that the gender transition procedure is the only way to treat the mental
health concern.
3. At least one mental health professional and one other health care provider
certifies in writing that the individual suffers from no other mental health concerns.
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4. The health care provider receives the voluntary and informed consent of the
individual and the individual's parent or legal guardian by providing them, both
orally and in writing, with a notice, the contents are which are prescribed in the bill,
at least 30 days before the first treatment of the gender transition procedure and
during every subsequent medical visit for treatment during the following six months.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 895.039 of the statutes is created to read:
895.039 Performing gender transition procedures on minors; liability.
(1) DEFINITIONS. In this section:
(a) 1. “Gender transition procedure” means a medical or surgical service,
including a physician's service, inpatient or outpatient hospital service, or prescribed
drug, related to gender transition that seeks to do any of the following:
a. Alter or remove an individual's physical or anatomical characteristics or
features that are typical for the individual's biological sex.
b. Instill or create for an individual physiological or anatomical characteristics
that resemble a sex different from the individual's biological sex, including a medical
service that provides puberty-blocking drugs, cross-sex hormones, or another
mechanism to promote the development of feminizing or masculinizing features in
a sex different from the individual's biological sex, or genital or nongenital gender
reassignment surgery performed for the purpose of assisting an individual with a
gender transition.
2. Notwithstanding subd. 1., “gender transition procedure” does not include
any of the following:
a. A service provided to an individual born with a medically verifiable disorder
of sexual development, including an individual with external biological sex
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characteristics that are irresolvably ambiguous, such as an individual born with
46,XX chromosomes with virilization, with 46,XY chromosomes with
undervirilization, or having both ovarian and testicular tissue.
b. A service provided to an individual when a physician has diagnosed a sexual
development disorder and the physician has determined through genetic or
biochemical testing that the individual does not have the normal sex chromosome
structure, sex steroid hormone production, or sex steroid hormone action for a
biological male or biological female.
c. The treatment of an infection, injury, disease, or disorder that is caused or
exacerbated by the performance of a gender transition procedure, regardless of
whether the gender transition procedure was performed in accordance with state or
federal law.
d. A procedure undertaken because an individual suffers from a physical
disorder, physical injury, or physical illness that would, as certified by a physician,
place the individual in imminent danger of death or impairment of major bodily
function unless surgery is performed.
(b) “Health care provider” has the meaning given in s. 146.81 (1) (a) to (hp).
(c) “Mental health professional” means any of the following:
1. A physician licensed under subch. II of ch. 448 who specializes in psychiatry.
2. A psychologist licensed under ch. 455.
3. A professional counselor licensed under ch. 457.
4. A marriage and family therapist licensed under ch. 457.
5. A social worker certified or licensed under ch. 457.
(d) “Minor” means an individual who is under 18 years of age.
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(2) CIVIL CAUSES OF ACTION. A health care provider who performs a gender
transition procedure on a minor is liable to the minor if the minor is injured,
including any physical, psychological, emotional, or physiological injury, by the
gender transition procedure or related treatment or the aftereffects of the gender
transition procedure or related treatment. The minor, or the minor's parent, legal
guardian, or legal representative, may bring a civil action against the health care
provider for any of the following damages:
(a) Declaratory or injunctive relief.
(b) Compensatory damages.
(c) Punitive damages.
(d) If the prevailing party, reasonable attorney fees and costs.
(3) LIMITATION OF ACTIONS. An action under this section shall be commenced
before the minor has attained the age of 33 years or, if the minor dies before attaining
the age of 33 years, the date on which the minor would have attained the age of 33
years.
(4) SAFE HARBOR. (a) It is a defense to an action brought under this section if,
before a health care provider performs a gender transition procedure on a minor, all
of the following occur:
1. The health care provider documents the minor's perceived gender or
perceived sex for at least 2 continuous years, and the minor's perceived gender or
perceived sex is invariably inconsistent with the minor's biological sex throughout
the 2-year period.
2. To the extent that the minor suffers from a mental health concern, at least
2 health care providers, including at least one mental health professional, certifies
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in writing that the gender transition procedure is the only way to treat the mental
health concern.
3. At least 2 health care providers, including at least one mental health
professional, certifies in writing that the minor suffers from no mental health
concerns other than the concern described under subd. 2., including depression, an
eating disorder, autism, attention deficit hyperactivity disorder, intellectual
disability, or a psychotic disorder.
4. The health care provider receives the voluntary and informed consent of the
minor and the minor's parent or legal guardian as provided in par. (b).
(b) Consent to a gender transition procedure is voluntary and informed under
par. (a) 4. only if, at least 30 days before the first treatment of the gender transition
procedure and during every subsequent medical visit for treatment during the
following 6 months, the minor and the minor's parent or legal guardian is provided
with the following notice, both orally and in writing in at least 14-point type in a
proportional font:
NOTICE
If your child begins one of these treatments, it may actually worsen the
discordance and thus increase the likelihood that your child will need additional and
more serious interventions to address the worsening condition. For example, if your
child begins socially transitioning or taking puberty blockers, that treatment may
significantly increase the likelihood that your child's discordance will worsen and
lead to your child eventually seeking cross-sex hormones or even surgery to remove
some of your child's body parts.
Sweden, Finland, and the United Kingdom have conducted systematic reviews
of evidence and concluded that there is no evidence that the potential benefits of
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puberty blockers and cross-sex hormones for this purpose outweigh the known or
assumed risks.
Medical authorities in Sweden, Finland, and the United Kingdom have since
recommended psychotherapy as the first line of treatment for youth gender
dysphoria, with drugs and surgeries reserved as a measure of last resort. Medical
authorities in France have advised “great caution” when prescribing hormones for
gender dysphoria.
There are people who underwent gender transition treatments as minors and
later regretted that decision and the physical harm that these treatments caused,
and the total percentage of people who experience this regret is unknown. Some
estimate that the rate is below 2 percent, but that estimate is based on studies done
on adults who transitioned as adults or on minors who transitioned under highly
restrictive and controlled conditions.
Sometimes gender transition treatments have been proposed as a way to reduce
the chances of a minor committing suicide due to discordance between the minor's
sex and his or her perception, but the rates of actual suicide from this discordance
remain extremely low. Furthermore, as recognized by health authorities in Europe,
there is no evidence that suicidality is caused by “unaffirmed” gender or that gender
transition treatments are causally linked to a reduction in serious suicidal attempts
or ideations.
For puberty blockers:
Puberty blockers are not approved for this purpose by the U.S. food and drug
administration, which is the federal agency that determines which drugs are safe
and effective for humans to use. Claims about puberty blockers' safety and efficacy
are based on their use for precocious puberty, a different condition in which normal
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puberty is allowed to resume once the patient reaches the appropriate age. Studies
on the benefits of using puberty blockers for gender dysphoria are notoriously weak.
Puberty blockers are not fully reversible because, among other risks, puberty
blockers may intensify a minor's discordance and cause it to persist. Puberty
blockers increase the risk of your child being sterilized, meaning that he or she will
never be able to have children. Puberty blockers may also cause diminished bone
density for your child, increasing the risk of fracture and early osteoporosis. Puberty
blockers may also prevent your child from ever being able to engage in sexual activity
or achieve orgasm for the rest of your child's life. There is no research on the
long-term risks to minors of persistent exposure to puberty blockers. The full effects
of puberty blockers on brain development and cognition are unknown.
For cross-sex hormones:
The use of cross-sex hormones in males is associated with numerous health
risks, such as thromboembolic disease, including blood clots; cholelithiasis,
including gallstones; coronary artery disease, including heart attacks;
macroprolactinoma, which is a tumor of the pituitary gland; cerebrovascular disease,
including stroke; hypertriglyceridemia, which is an elevated level of triglycerides in
the blood; breast cancer; and irreversible infertility. The use of cross-sex hormones
in females is associated with risks of erythrocytosis, which is an increase in red blood
cells; severe liver dysfunction; coronary artery disease, including heart attack;
hypertension; and increased risk of breast and uterine cancer. Once a minor begins
cross-sex hormones, the minor may need to continue taking those hormones for
many years and possibly for the remainder of the minor's life. The cost of these
hormones may be tens of thousands of dollars. If the use of cross-sex hormones leads
to surgery, the total cost of transitioning may exceed $100,000.
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For surgical procedures:
The dangers, risks, complications, and long-term concerns associated with
these types of procedures are almost entirely unknown. There are no long-term
studies on either the effectiveness or safety of these surgical procedures.
SECTION 2.0Initial applicability.
(1) This act first applies to a gender transition procedure performed on the
effective date of this subsection.
(END)
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