Bill Text: TX HB1746 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Relating to prohibited nonconsensual medical procedures and treatment on certain minors with intersex traits.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2023-03-07 - Referred to Public Health [HB1746 Detail]

Download: Texas-2023-HB1746-Introduced.html

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88R6321 AMF-D
By: Hernandez H.B. No. 1746

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, 2023.