Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB502 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 502
5	5	October 18, 2023 - Introduced by Representatives ROZAR, BEHNKE, BRANDTJEN,
6	6	DITTRICH, DUCHOW, GOEBEN, GUNDRUM, GUSTAFSON, MAXEY, NEDWESKI,
7	7	O'CONNOR, SCHRAA, WICHGERS, GREEN and RETTINGER, cosponsored by
8	8	Senators HUTTON, KAPENGA, NASS, TOMCZYK, BRADLEY and FELZKOWSKI.
9	9	Referred to Committee on Judiciary.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to create 895.039 of the statutes; relating to: a civil cause of action for
12	12	a minor injured by a gender transition procedure.
13	13	Analysis by the Legislative Reference Bureau
14	14	This bill establishes a civil cause of action against a health care provider who
15	15	performs a gender transition procedure, as defined in the bill, on an individual who
16	16	is under 18 years of age and who is injured, including any physical, psychological,
17	17	emotional, or physiological injury, by the gender transition procedure or related
18	18	treatment or the aftereffects of the gender transition procedure or related treatment.
19	19	Under the bill, such an action must be commenced before the individual attains the
20	20	age of 33 years.
21	21	The bill provides that it is a defense to an action under the bill if all of the
22	22	following occur before a health care provider performs a gender transition procedure
23	23	on an individual who is under 18 years of age:
24	24	1. The health care provider documents the individual's perceived gender or
25	25	perceived sex for at least two continuous years, and the individual's perceived gender
26	26	or perceived sex is invariably inconsistent with the individual's biological sex
27	27	throughout the two-year period.
28	28	2. To the extent that the individual suffers from a mental health concern, at
29	29	least one mental health professional and one other health care provider certifies in
30	30	writing that the gender transition procedure is the only way to treat the mental
31	31	health concern.
32	32	3. At least one mental health professional and one other health care provider
33	33	certifies in writing that the individual suffers from no other mental health concerns.
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38	38	4. The health care provider receives the voluntary and informed consent of the
39	39	individual and the individual's parent or legal guardian by providing them, both
40	40	orally and in writing, with a notice, the contents are which are prescribed in the bill,
41	41	at least 30 days before the first treatment of the gender transition procedure and
42	42	during every subsequent medical visit for treatment during the following six months.
43	43	The people of the state of Wisconsin, represented in senate and assembly, do
44	44	enact as follows:
45	45	SECTION 1. 895.039 of the statutes is created to read:
46	46	895.039 Performing gender transition procedures on minors; liability.
47	47	(1) DEFINITIONS. In this section:
48	48	(a) 1. “Gender transition procedure” means a medical or surgical service,
49	49	including a physician's service, inpatient or outpatient hospital service, or prescribed
50	50	drug, related to gender transition that seeks to do any of the following:
51	51	a. Alter or remove an individual's physical or anatomical characteristics or
52	52	features that are typical for the individual's biological sex.
53	53	b. Instill or create for an individual physiological or anatomical characteristics
54	54	that resemble a sex different from the individual's biological sex, including a medical
55	55	service that provides puberty-blocking drugs, cross-sex hormones, or another
56	56	mechanism to promote the development of feminizing or masculinizing features in
57	57	a sex different from the individual's biological sex, or genital or nongenital gender
58	58	reassignment surgery performed for the purpose of assisting an individual with a
59	59	gender transition.
60	60	2. Notwithstanding subd. 1., “gender transition procedure” does not include
61	61	any of the following:
62	62	a. A service provided to an individual born with a medically verifiable disorder
63	63	of sexual development, including an individual with external biological sex
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87	87	characteristics that are irresolvably ambiguous, such as an individual born with
88	88	46,XX chromosomes with virilization, with 46,XY chromosomes with
89	89	undervirilization, or having both ovarian and testicular tissue.
90	90	b. A service provided to an individual when a physician has diagnosed a sexual
91	91	development disorder and the physician has determined through genetic or
92	92	biochemical testing that the individual does not have the normal sex chromosome
93	93	structure, sex steroid hormone production, or sex steroid hormone action for a
94	94	biological male or biological female.
95	95	c. The treatment of an infection, injury, disease, or disorder that is caused or
96	96	exacerbated by the performance of a gender transition procedure, regardless of
97	97	whether the gender transition procedure was performed in accordance with state or
98	98	federal law.
99	99	d. A procedure undertaken because an individual suffers from a physical
100	100	disorder, physical injury, or physical illness that would, as certified by a physician,
101	101	place the individual in imminent danger of death or impairment of major bodily
102	102	function unless surgery is performed.
103	103	(b) “Health care provider” has the meaning given in s. 146.81 (1) (a) to (hp).
104	104	(c) “Mental health professional” means any of the following:
105	105	1. A physician licensed under subch. II of ch. 448 who specializes in psychiatry.
106	106	2. A psychologist licensed under ch. 455.
107	107	3. A professional counselor licensed under ch. 457.
108	108	4. A marriage and family therapist licensed under ch. 457.
109	109	5. A social worker certified or licensed under ch. 457.
110	110	(d) “Minor” means an individual who is under 18 years of age.
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137	137	(2) CIVIL CAUSES OF ACTION. A health care provider who performs a gender
138	138	transition procedure on a minor is liable to the minor if the minor is injured,
139	139	including any physical, psychological, emotional, or physiological injury, by the
140	140	gender transition procedure or related treatment or the aftereffects of the gender
141	141	transition procedure or related treatment. The minor, or the minor's parent, legal
142	142	guardian, or legal representative, may bring a civil action against the health care
143	143	provider for any of the following damages:
144	144	(a) Declaratory or injunctive relief.
145	145	(b) Compensatory damages.
146	146	(c) Punitive damages.
147	147	(d) If the prevailing party, reasonable attorney fees and costs.
148	148	(3) LIMITATION OF ACTIONS. An action under this section shall be commenced
149	149	before the minor has attained the age of 33 years or, if the minor dies before attaining
150	150	the age of 33 years, the date on which the minor would have attained the age of 33
151	151	years.
152	152	(4) SAFE HARBOR. (a) It is a defense to an action brought under this section if,
153	153	before a health care provider performs a gender transition procedure on a minor, all
154	154	of the following occur:
155	155	1. The health care provider documents the minor's perceived gender or
156	156	perceived sex for at least 2 continuous years, and the minor's perceived gender or
157	157	perceived sex is invariably inconsistent with the minor's biological sex throughout
158	158	the 2-year period.
159	159	2. To the extent that the minor suffers from a mental health concern, at least
160	160	2 health care providers, including at least one mental health professional, certifies
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189	189	in writing that the gender transition procedure is the only way to treat the mental
190	190	health concern.
191	191	3. At least 2 health care providers, including at least one mental health
192	192	professional, certifies in writing that the minor suffers from no mental health
193	193	concerns other than the concern described under subd. 2., including depression, an
194	194	eating disorder, autism, attention deficit hyperactivity disorder, intellectual
195	195	disability, or a psychotic disorder.
196	196	4. The health care provider receives the voluntary and informed consent of the
197	197	minor and the minor's parent or legal guardian as provided in par. (b).
198	198	(b) Consent to a gender transition procedure is voluntary and informed under
199	199	par. (a) 4. only if, at least 30 days before the first treatment of the gender transition
200	200	procedure and during every subsequent medical visit for treatment during the
201	201	following 6 months, the minor and the minor's parent or legal guardian is provided
202	202	with the following notice, both orally and in writing in at least 14-point type in a
203	203	proportional font:
204	204	NOTICE
205	205	If your child begins one of these treatments, it may actually worsen the
206	206	discordance and thus increase the likelihood that your child will need additional and
207	207	more serious interventions to address the worsening condition. For example, if your
208	208	child begins socially transitioning or taking puberty blockers, that treatment may
209	209	significantly increase the likelihood that your child's discordance will worsen and
210	210	lead to your child eventually seeking cross-sex hormones or even surgery to remove
211	211	some of your child's body parts.
212	212	Sweden, Finland, and the United Kingdom have conducted systematic reviews
213	213	of evidence and concluded that there is no evidence that the potential benefits of
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241	241	puberty blockers and cross-sex hormones for this purpose outweigh the known or
242	242	assumed risks.
243	243	Medical authorities in Sweden, Finland, and the United Kingdom have since
244	244	recommended psychotherapy as the first line of treatment for youth gender
245	245	dysphoria, with drugs and surgeries reserved as a measure of last resort. Medical
246	246	authorities in France have advised “great caution” when prescribing hormones for
247	247	gender dysphoria.
248	248	There are people who underwent gender transition treatments as minors and
249	249	later regretted that decision and the physical harm that these treatments caused,
250	250	and the total percentage of people who experience this regret is unknown. Some
251	251	estimate that the rate is below 2 percent, but that estimate is based on studies done
252	252	on adults who transitioned as adults or on minors who transitioned under highly
253	253	restrictive and controlled conditions.
254	254	Sometimes gender transition treatments have been proposed as a way to reduce
255	255	the chances of a minor committing suicide due to discordance between the minor's
256	256	sex and his or her perception, but the rates of actual suicide from this discordance
257	257	remain extremely low. Furthermore, as recognized by health authorities in Europe,
258	258	there is no evidence that suicidality is caused by “unaffirmed” gender or that gender
259	259	transition treatments are causally linked to a reduction in serious suicidal attempts
260	260	or ideations.
261	261	For puberty blockers:
262	262	Puberty blockers are not approved for this purpose by the U.S. food and drug
263	263	administration, which is the federal agency that determines which drugs are safe
264	264	and effective for humans to use. Claims about puberty blockers' safety and efficacy
265	265	are based on their use for precocious puberty, a different condition in which normal
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295	295	puberty is allowed to resume once the patient reaches the appropriate age. Studies
296	296	on the benefits of using puberty blockers for gender dysphoria are notoriously weak.
297	297	Puberty blockers are not fully reversible because, among other risks, puberty
298	298	blockers may intensify a minor's discordance and cause it to persist. Puberty
299	299	blockers increase the risk of your child being sterilized, meaning that he or she will
300	300	never be able to have children. Puberty blockers may also cause diminished bone
301	301	density for your child, increasing the risk of fracture and early osteoporosis. Puberty
302	302	blockers may also prevent your child from ever being able to engage in sexual activity
303	303	or achieve orgasm for the rest of your child's life. There is no research on the
304	304	long-term risks to minors of persistent exposure to puberty blockers. The full effects
305	305	of puberty blockers on brain development and cognition are unknown.
306	306	For cross-sex hormones:
307	307	The use of cross-sex hormones in males is associated with numerous health
308	308	risks, such as thromboembolic disease, including blood clots; cholelithiasis,
309	309	including gallstones; coronary artery disease, including heart attacks;
310	310	macroprolactinoma, which is a tumor of the pituitary gland; cerebrovascular disease,
311	311	including stroke; hypertriglyceridemia, which is an elevated level of triglycerides in
312	312	the blood; breast cancer; and irreversible infertility. The use of cross-sex hormones
313	313	in females is associated with risks of erythrocytosis, which is an increase in red blood
314	314	cells; severe liver dysfunction; coronary artery disease, including heart attack;
315	315	hypertension; and increased risk of breast and uterine cancer. Once a minor begins
316	316	cross-sex hormones, the minor may need to continue taking those hormones for
317	317	many years and possibly for the remainder of the minor's life. The cost of these
318	318	hormones may be tens of thousands of dollars. If the use of cross-sex hormones leads
319	319	to surgery, the total cost of transitioning may exceed $100,000.
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347	347	For surgical procedures:
348	348	The dangers, risks, complications, and long-term concerns associated with
349	349	these types of procedures are almost entirely unknown. There are no long-term
350	350	studies on either the effectiveness or safety of these surgical procedures.
351	351	SECTION 2.0Initial applicability.
352	352	(1) This act first applies to a gender transition procedure performed on the
353	353	effective date of this subsection.
354	354	(END)
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