Toth’s Social Transitioning Bill Adds $10M Minimum Damages For Procedures

The text as introduced · 2,789 words

By: Toth
H.B. No. 2258

A BILL TO BE ENTITLED

AN ACT

imposing private civil liability on anyone who causes or

contributes to the social transitioning of a minor.

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

SECTION 1. This Act shall be known as the Vulnerable Youth

Protection Act.

SECTION 2. Chapter 161, Health and Safety Code, is amended

by adding Subchapter Y to read as follows:

SUBCHAPTER Y. VULNERABLE YOUTH PROTECTION ACT

Sec. 161.711. DEFINITIONS. In this subchapter:

(1) "Castration, sterilization, or mutilation of a

minor" means any of the procedures or treatments prohibited in

Subchapter X, Chapter 161, Health and Safety Code, regardless of

who performs or provides those procedures or treatments. It does

not include any of the conduct described in Section 161.703, Health

and Safety Code.

(2) "Social transitioning" means any act by which a

minor child adopts or espouses a gender identity that differs from

the child's biological sex as determined by the sex organs,

chromosomes, and endogenous profiles of the child. This can

include but is not limited to changes in clothing, pronouns,

hairstyle, and name.

Sec. 161.712. CAUSING OR CONTRIBUTING TO THE TRANSITIONING

OF A MINOR. (a) Any person who causes or contributes to:

(1) The social transitioning of a minor; or

(2) The castration, sterilization, or mutilation of a

minor,

shall be strictly, absolutely, and jointly and severally

liable to the child and the child's parents for any personal

injuries or harm resulting from the conduct described in this

subsection, PROVIDED, that no person may be held liable under this

section for speech or conduct protected by the First Amendment of

the United States Constitution, as made applicable to the states

through the Supreme Court of the United States' interpretations of

the Fourteenth Amendment of the United States Constitution, or by

Article 1, § 8 of the Texas State Constitution.

(b) A person who prevails in a suit brought under this

section shall be entitled to recover:

(1) nominal damages;

(2) compensatory damages;

(3) statutory damages in an amount of not less than

$10,000.00 from each defendant, in addition to any compensatory

damages that may be awarded; and

(4) punitive damages in an amount of not less than

$10,000,000.00 from each defendant if irreversible sterilization

or sexual dysfunction results, in addition to any compensatory

damages that may be awarded; and

(5) costs and reasonable attorney's fees.

(c) Notwithstanding any other law, a person may bring an

action under this section not later than the 20th anniversary of the

date the cause of action accrues.

(d) Notwithstanding any other law, the following are not a

defense to an action brought under this section:

(1) ignorance or mistake of law;

(2) a defendant's belief that the requirements or

provisions of this subchapter are unconstitutional or were

unconstitutional;

(3) a defendant's reliance on any court decision that

has been vacated, reversed, or overruled on appeal or by a

subsequent court, even if that court decision had not been vacated,

reversed, or overruled when the conduct described in subsection

(a) occurred;

(4) a defendant's reliance on any state or federal

court decision that is not binding on the court in which the action

has been brought;

(5) a defendant's reliance on any federal statute,

agency rule or action, or treaty that has been repealed,

superseded, or declared invalid or unconstitutional, even if that

federal statute, agency rule or action, or treaty had not been

repealed, superseded, or declared invalid or unconstitutional when

the conduct described in subsection (a) occurred;

(6) non-mutual issue preclusion or non-mutual claim

preclusion;

(7) the consent of the plaintiff to the defendant's

conduct;

(8) contributory or comparative negligence;

(9) assumption of risk;

(10) lack of but-for or proximate causation;

(11) sovereign immunity, governmental immunity,

official immunity, or qualified immunity;

(12) the plaintiff's waiver or purported waiver of

their right to sue under this section;

(13) the plaintiff's failure to exhaust administrative

remedies; or

(14) any claim that the enforcement of this subchapter

or the imposition of civil liability against the defendant will

violate the constitutional rights of third parties, except as

provided by Subsection (h).

(e) Notwithstanding any other law, including Chapter 17,

Civil Practice and Remedies Code, the courts of this state shall

have personal jurisdiction over any defendant sued under this

section to the maximum extent permitted by the Fourteenth Amendment

to the United States Constitution.

(f) Notwithstanding any other law, the law of Texas shall

apply to any gender-transitioning treatment provided to a resident

or citizen of Texas, regardless of where that treatment occurred,

and to any civil action brought under this Section, to the maximum

extent permitted by the Constitution of the United States and the

Constitution of Texas. Any contractual choice-of-law provision

that purports to require the law of a different jurisdiction to

apply shall be void as against public policy, and may not be

enforced in any state or federal court. This section shall apply

extraterritorially to the maximum extent permitted by the

Constitution of the United States and the Constitution of Texas.

(g) A civil action under this section may not be brought

against any person that acted at the behest of federal agencies,

contractors, or employees that are carrying out duties under

federal law, if the imposition of liability upon that person would

violate the doctrines of preemption or intergovernmental immunity.

(h) A defendant against whom an action is brought under this

section may assert an affirmative defense to liability under this

subsection if:

(1) the imposition of liability on the defendant will

violate constitutional or federally protected rights that belong to

the defendant personally; or

(2) the defendant

(A) has standing to assert the rights of a third

party under the tests for third-party standing established by the

Supreme Court of the United States; and

(B) demonstrates that the imposition of

liability on the defendant will violate constitutional or federally

protected rights belonging to that third party.

(i) Nothing in this section or subchapter shall limit or

preclude a defendant from asserting the unconstitutionality of any

provision or application of Texas law as a defense to liability

under this section, or from asserting any other defense that might

be available under any other source of law.

(j) Notwithstanding any other law, this section shall be

enforced exclusively through the private civil actions described in

Subsections (a) and (b). No direct or indirect enforcement of this

section may be taken or threatened by the state, a political

subdivision, a district or county attorney, or any officer or

employee of this state or a political subdivision against any

person or entity, by any means whatsoever, and the conduct

described in Subsection (a) may not be used to justify or trigger

the enforcement of any other law or any type of adverse consequence

under any other law, except through the private civil actions

described in Subsections (a) and (b). This section does not

preclude or limit the enforcement of any other law or regulation

against conduct that is independently prohibited by such other law

or regulation, and that would remain prohibited by such other law or

regulation in the absence of this section.

(k) Notwithstanding any other law, neither the state, nor

any of its political subdivisions, nor any district or county

attorney, nor any officer or employee of this state or a political

subdivision may:

(1) act in concert or participation with anyone who

brings suit under this section;

(2) establish or attempt to establish any type of

agency or fiduciary relationship with a person who brings suit

under this section;

(3) make any attempt to control or influence a person's

decision to bring suit under this section or that person's conduct

of the litigation; or

(4) intervene in any action brought under this

section.

This subsection does not prohibit a person or entity

described by this subsection from filing an amicus curiae brief in

the action, so long as that person or entity does not act in concert

or participation with the plaintiff or plaintiffs who sue under

this section or violate any provision of Subsection (k)(1)-(4).

(l) Notwithstanding any other law, a civil action under this

section shall not be subject to any provision of Chapter 27, Civil

Practice and Remedies Code, or Chapter 110, Civil Practice and

Remedies Code.

(m) Notwithstanding any other law, including Rule 42 of the

Texas Rules of Civil Procedure, a civil action under this section

may not be litigated on behalf of a plaintiff class or a defendant

class, and no court may certify a class under Rule 42 of the Texas

Rules of Civil Procedure in any civil action brought under this

section.

(n) Any waiver or purported waiver of the right to sue under

this section shall be void as against public policy, and shall not

be enforceable in any court.

Sec. 161.713. IMMUNITY FROM SUIT AND LIMITS ON STATE-COURT

JURISDICTION. (a) Notwithstanding any other law, the state and

each of its officers and employees shall have sovereign immunity,

its political subdivisions and each of their officers and employees

shall have governmental immunity, and each officer and employee of

this state or a political subdivision shall have official immunity

(as well as sovereign or governmental immunity, as appropriate) in

any action, claim, counterclaim, or any type of legal or equitable

action that challenges the validity or enforceability of any

provision or application of this subchapter, on constitutional

grounds or otherwise, or that seeks to prevent or enjoin the state,

its political subdivisions, or any officer, employee, or agent of

this state or a political subdivision from enforcing any provision

or application of this subchapter, or from hearing, adjudicating,

or docketing a civil action brought under Section 161.712, unless

that immunity has been abrogated or preempted by federal law in a

manner consistent with the Constitution of the United States. The

sovereign immunity conferred by this section upon the state and

each of its officers and employees includes the constitutional

sovereign immunity recognized by the Supreme Court of the United

States in Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996),

and Alden v. Maine , 527 U.S. 706 (1999), which applies in both

state and federal court and which may not be abrogated by Congress

or by any state or federal court except pursuant to congressional

legislation authorized by section 5 of the Fourteenth Amendment, by

the Bankruptcy Clause of Article I, or by Congress's powers to raise

and support Armies and to provide and maintain a Navy, or by any

other ground that might be recognized by the Supreme Court of the

United States.

(b) Notwithstanding any other law, the immunities conferred

by Subsection (a) shall apply in every court, both state and

federal, and in every adjudicative proceeding of any type

whatsoever.

(c) Notwithstanding any other law, no provision of state law

may be construed to waive or abrogate an immunity described in

Subsection (a) unless it expressly waives or abrogates immunity

with specific reference to this section.

(d) Notwithstanding any other law, no attorney representing

the state, its political subdivisions, or any officer, employee, or

agent of this state or a political subdivision is authorized or

permitted to waive an immunity described in Subsection (a) or take

any action that would result in a waiver of that immunity, and any

such action or purported waiver shall be regarded as a legal nullity

and an ultra vires act.

(e) Notwithstanding any other law, including Chapter 37,

Civil Practice and Remedies Code, and sections 22.002, 22.221, and

24.007 through 24.011, Government Code, no court of this state may

award declaratory or injunctive relief, or any type of stay or writ,

including a writ of prohibition, that would pronounce any

provision or application of this subchapter invalid or

unconstitutional, or that would restrain or prevent the state, its

political subdivisions, any officer, employee, or agent of this

state or a political subdivision, or any person from enforcing any

provision or application of this subchapter, or from hearing,

adjudicating, docketing, or filing a civil action brought under

Section 161.712, and no court of this state shall have jurisdiction

to consider any action, claim, or counterclaim that seeks such

relief, and no such action, claim, or counterclaim may be litigated

on behalf of a plaintiff or defendant class, notwithstanding Rule

42 of the Texas Rules of Civil Procedure, and no court may certify a

plaintiff or defendant class in any action seeking the relief

described in this Subsection.

(f) Nothing in this section or subchapter shall be construed

to prevent a litigant from asserting the invalidity or

unconstitutionality of any provision or application of this

subchapter as a defense to any action, claim, or counterclaim

brought against that litigant.

Sec. 161.714. SEVERABILITY. (a) Mindful of Leavitt v.

Jane L. , 518 U.S. 137 (1996), in which in the context of determining , 518 U.S. 137 (1996), in which in the context of determining

the severability of a state statute the Supreme Court of the United

States held that an explicit statement of legislative intent is

controlling, it is the intent of the legislature that every

provision, section, subsection, sentence, clause, phrase, or word

in this subchapter, and every application of the provisions in this

subchapter to every person, group of persons, or circumstances,

are severable from each other.

(b) If any application of any provision in this subchapter

to any person, group of persons, or circumstances is found by a

court to be invalid, preempted, or unconstitutional, for any reason

whatsoever, then the remaining applications of that provision to

all other persons and circumstances shall be severed and preserved,

and shall remain in effect. All constitutionally valid applications

of the provisions in this subchapter shall be severed from any

applications that a court finds to be invalid, preempted, or

unconstitutional, because it is the legislature's intent and

priority that every single valid application of every statutory

provision be allowed to stand alone.

(c) The legislature further declares that it would have

enacted this subchapter, and each provision, section, subsection,

sentence, clause, phrase, or word, and all constitutional

applications of the provisions of this subchapter, irrespective of

the fact that any provision, section, subsection, sentence, clause,

phrase, or word, or applications of this subchapter were to be

declared invalid, preempted, or unconstitutional.

(d) If any provision of this subchapter is found by any

court to be unconstitutionally vague, then the applications of that

provision that do not present constitutional vagueness problems

shall be severed and remain in force, consistent with the

severability requirements of Subsections (a), (b), and (c).

(e) No court may decline to enforce the severability

requirements of Subsections (a), (b), (c), and (d) on the ground

that severance would "rewrite" the statute or involve the court in

legislative or lawmaking activity. A court that declines to

enforce or enjoins a state official from enforcing a statutory

provision is never rewriting a statute or engaging in legislative

or lawmaking activity, as the statute continues to contain the same

words as before the court's decision. A judicial injunction or

declaration of unconstitutionality:

(1) is nothing more than an edict prohibiting

enforcement of the disputed statute against the named parties to

that lawsuit, which may subsequently be vacated by a later court if

that court has a different understanding of the requirements of the

Texas Constitution or United States Constitution;

(2) is not a formal amendment of the language in a

statute; and

(3) no more rewrites a statute than a decision by the

executive not to enforce a duly enacted statute in a limited and

defined set of circumstances.

(f) If any state or federal court disregards any of the

severability requirements in Subsections (a), (b), (c), (d), or

(e), and declares or finds any provision of this subchapter

facially invalid, preempted, or unconstitutional, when there are

discrete applications of that provision can be enforced against a

person, group of persons, or circumstances without violating

federal law or the federal or state constitutions, then that

provision shall be interpreted, as a matter of state law, as if the

legislature had enacted a provision limited to the persons, group

of persons, or circumstances for which the provision's application

will not violate federal law or the federal or state constitutions,

and every court and every state official shall adopt this saving

construction of that provision until the court ruling that

pronounced the provision facially invalid, preempted, or

unconstitutional is vacated or overruled.

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.