bill restricting intersex procedures on foster children

The text as introduced · 1,538 words

89R5526 AMF-D

By: Hernandez
H.B. No. 1559

A BILL TO BE ENTITLED

AN ACT

relating to prohibited nonconsensual medical procedures and

treatment on certain minors with intersex traits.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 266, Family Code, is amended by

designating Sections 266.001 through 266.013 as Subchapter A and

adding a subchapter heading 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 trait" means an inborn chromosomal,

gonadal, genital, or endocrine characteristic, or a combination of

those characteristics, that is not suited to the typical definition

of male or female or is atypical for the sex assigned to an

individual.

(2) "Medical procedure or treatment related to an

intersex trait" includes:

(A) hormonal treatment to treat or modify an

intersex trait; or

(B) genital surgery, including:

(i) clitorectomy, clitoroplasty, clitoral

reduction, and clitoral recession, including corporal-sparing

procedures;

(ii) vaginoplasty, introitoplasty, vaginal

exteriorization, and partial or total urogenital sinus

mobilization;

(iii) labiaplasty and labial reduction;

(iv) hypospadias surgery, relocation of the

urethral meatus, and chordee release;

(v) phalloplasty; and

(vi) gonadectomy, including of testes,

ovaries, ovotestes, or streak gonads.

(3) "Medically necessary" means a medical procedure or

treatment immediately necessary to treat an injury, illness,

disease, or condition affecting a child's health that if delayed

would adversely affect the 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 unless:

(1) the procedure or treatment is medically necessary

and the child consents to the procedure or treatment; or

(2) for a procedure or treatment that is not medically

necessary, the child consents to the procedure or treatment and a

court authorizes the procedure or treatment as provided under this

subchapter.

Sec. 266.053. INFORMED CONSENT. (a) Consent to a medical

procedure or treatment related to an intersex trait is voluntary

and informed only if:

(1) the physician provides to the child and the child's

caregivers the information necessary for the child to provide

voluntary and informed consent to the procedure or treatment,

including:

(A) the nature of the proposed procedure or

treatment, including whether and the extent to which the procedure

is irreversible;

(B) the goals of the procedure or treatment,

including whether the benefits of the proposed procedure or

treatment are medical, psychological, or social, and the strength

of the evidence supporting claims that the procedure provides each

of those benefits;

(C) the possible risks associated with the

procedure or treatment, including, if applicable, risk from

anesthesia, loss of reproductive capacity, and loss of sexual

function or sensation; and

(D) the alternatives to the proposed procedure or

treatment, including delay of the procedure or treatment;

(2) on at least two separate occasions a mental health

professional with previous experience treating individuals with

intersex traits evaluates the child and the child's caregivers to

ensure the child has capacity to understand the procedure or

treatment and is providing voluntary and informed consent absent

coercion from family members or medical staff; and

(3) the consent is in writing and includes the

following statements:

(A) "I (name of child) certify that I understand

(reprint of Subdivisions (1)(A)-(D)) and consent to (description of

medical procedure or treatment) to be performed or provided by

(name of physician) on (date the medical procedure or treatment is

scheduled to be performed or provided on the child).";

(B) "I (name of physician performing the

procedure or providing the treatment) certify that I have discussed

with (name of child and names of child's caregivers) (reprint of

Subdivisions (1)(A)-(D)) on (date the information was provided).";

and

(C) "I (name of mental health professional)

certify that I have discussed with (name of child and names of

child's caregivers) (reprint of Subdivisions (1)(A)-(D)) on (date

the information was provided). It is my professional opinion that

(name of child) actively desires (name of procedure or treatment)

and is capable of providing informed consent."

(b) The child's physician shall retain the original consent

in the child's medical record and provide a copy of the consent to

the child and the child's caregivers.

Sec. 266.054. COURT APPROVAL OF CERTAIN MEDICAL PROCEDURES

OR TREATMENTS. (a) If the department determines a foster child

should undergo a medical procedure or treatment related to an

intersex trait that is not medically necessary or the child wants to

undergo the procedure or treatment, the department or child may

file a petition with the court having continuing jurisdiction over

the child seeking court approval for 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 available to treat 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) whether and 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 who has

not been appointed a separate guardian ad litem, argue against a

proposed medical procedure or treatment that is not medically

necessary.

(d) If a guardian ad litem has been appointed for a child

younger than 12 years of age, the guardian ad litem must argue

against a proposed medical procedure or treatment that is not

medically necessary at the hearing.

(e) 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

available to treat 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) whether and 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 duty to obtain informed consent

from the child and whether the duty has been adequately discharged;

and

(7) the public statements of intersex individuals or

patient advocates regarding Subdivisions (1)-(6).

(f) 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.

(g) If the requirements of Section 266.053 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 (f).

Sec. 266.055. FOSTER CHILD'S CONSENT TO MEDICAL PROCEDURE

OR TREATMENT. Notwithstanding Section 32.003 or 266.004 or other

law, a foster child may consent to a medical procedure or treatment

related to an intersex trait if the child provides voluntary and

informed consent to the proposed medical procedure or treatment in

accordance with Section 266.053.

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, 2025.