On May 17, 2023, the Texas Senate approved Senate Bill No. 14 (SB 14), prohibiting physicians from providing gender-affirming medical care to minors experiencing gender dysphoria (distress that results from having one's gender identity not match one's sex assigned at birth). The bill is expected to be signed into law by Texas Governor Greg Abbott and take effect on September 1, 2023.
SB 14 prohibits physicians and other licensed medical professionals from performing certain procedures and providing certain treatments to patients younger than 18 years of age "for gender transitioning, gender reassignment, or gender dysphoria." SB 14 prohibits puberty blockers, hormone therapy that induces transient or permanent infertility, sterilization surgeries, mastectomies, and the removal of any otherwise healthy or non-diseased body part or tissue for the purpose of transitioning a child's biological sex. The bill also prohibits the "use of public money or public assistance" to provide such treatments, and it further prohibits Medicaid and child health plan reimbursement for these treatments. The Texas Medical Board is directed to revoke the licenses of medical professionals who provide such services.
The bill does not prohibit puberty suppressants or certain medically necessary procedures for the treatment of premature puberty, and it does not prohibit treatments to children who were born with a medically verifiable genetic disorder of sex development or to children who do not have male or female sex chromosome structures as determined through genetic testing by a physician. SB 14 also includes a limited exception for minors receiving treatment prior to the bill's passage. However, it requires those individuals to "wean" off the medications in a "safe and medically appropriate" manner, and they may not switch to or begin a course of treatment on another prescription drug that is otherwise prohibited by SB 14.
The bill enables the Texas attorney general to enforce the prohibition on gender-affirming care for minors by bringing an action to restrain or enjoin a person from committing, continuing to commit or repeating the violation. The Texas attorney general can initiate enforcement actions if the attorney general "has reason to believe that a person is committing, has committed, or is about to commit" a violation.
SB 14 comes on the heels of a legal opinion released by the Texas Office of the Attorney General (OAG) on February 18, 2022, classifying certain gender-affirming services as child abuse under various sections of the Texas Family Code. The OAG qualified such treatment as child abuse on the basis that it causes "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning" under Texas Family Code § 261. Governor Abbott stated in a subsequent directive that medical professionals who facilitate access to these services and individuals who have mandatory reporting obligations but fail to report violations are subject to criminal penalties.
On May 5, 2023, the OAG launched an investigation into Dell Children's Medical Center in Austin to uncover whether the center had performed gender transitioning procedures. A group of physicians who staffed the adolescent medicine clinic have since departed, although the clinic has not shut down. On May 19, 2023, the OAG launched a similar investigation into Houston-based Texas Children's Hospital. Both investigations were initiated pursuant to the OAG's "power and duty to protect and enforce the public interest in nonprofit organizations" and required the production of various documents and communications pertaining to the facilities' provision of gender-affirming care.
Key Takeaways and Practical Implications
- In passing SB 14, Texas joins a growing number of states that have enacted similar restrictions on medical treatments for transgender minors. SB 14 prohibits medical professionals from providing gender-affirming care to minors, prohibits the use of public money to provide such treatments, and prohibits Medicaid and child health plan reimbursement for these services.
- SB 14 is expected to directly impact medical professionals who provide gender-related care to minors. Providers and healthcare facilities should expect robust enforcement efforts by state officials, as signaled by the investigations into Dell Children's Medical Center and Texas Children's Hospital initiated even prior to the law's enactment. The bill's provision allowing enforcement if the Texas attorney general "has reason to believe" that a person not only "is committing" or "has committed" a violation, but also "is about to commit" a violation, further signals that aggressive enforcement measures will be taken.
- SB 14 is likely to be challenged in the courts, as several organizations have already stated that they intend to file a lawsuit challenging the legislation. Although court decisions may pause the law's enforcement or limit its application, Texas is likely to appeal such decisions. As a result, court battles are likely to be lengthy and create significant uncertainty for healthcare providers and transgender minors in Texas.
- As the Dell Children's and Texas Children's investigations indicate, adolescent providers can expect to be under increased scrutiny regarding care provided to minors. Providers should reevaluate their documentation practices and ensure that for any of the prohibited services provided, where an exception applies (such as precocious puberty or a verifiable disorder of sex development), that exception is carefully and consistently documented in the medical file.
- Further legislation in other states is extremely likely, and that legislation could result in a wide variety of restrictions that would impact any risk analysis. In light of such uncertainties, organizations should stay in close touch with knowledgeable legal counsel to decide how to manage their conduct going forward, particularly if they intend to provide or facilitate access to gender-affirming care, or any medical care to minors who may be experiencing gender dysphoria. Legal planning should take into account privacy, healthcare regulatory, subpoena response and litigation/enforcement defense considerations.
- Providers and facilities are encouraged to involve in-house or outside legal counsel directly in planning discussions so they are protected by the attorney-client privilege as much as possible. Providers and facilities must be thoughtful about any public or internal statements on the matter.
Our multidisciplinary team of healthcare, privacy, litigation and white collar lawyers is monitoring this legislation and similar legislation in other states.
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