State Senate panel OKs bill allowing health professional performing 'gender transition procedure' on minor to be sued

SB199 allows person having procedure as a minor to sue

Sen. Gary Stubblefield speaks about a transgender bill in the Senate judiciary committee at the state Capitol in Little Rock on Feb. 13. (Arkansas Democrat-Gazette/Tommy Metthe)

A bill that would allow a person who received a "gender transition procedure" as a minor to sue the health professional who performed the procedure was endorsed by a Senate panel Monday.

Senate Bill 199, by Sen. Gary Stubblefield, R-Branch, passed in a voice vote in the Senate Committee on Judiciary with audible dissent from Sen. Clarke Tucker, D-Little Rock.

Stubblefield said his bill is needed to protect children from "gender transition procedures" including puberty blockers and reassignment surgeries, which he characterized as "chemical castration" and "mutilation."

Legal action under the legislation could be taken within 30 years of the minor turning 18 or within 30 years of when the minor would have turned 18 if the minor died before turning 18. The current statute of limitations for most medical malpractice cases in Arkansas is two years, according to state law.

Supporters questioned the ability of minors to consent to procedures covered by the bill and noted the legislation would not outlaw "gender transition procedures" but would provide legal recourse for those who receive the procedures.

Opponents of the bill argued it would unfairly limit treatments for transgender people, especially those with mental illness, and could violate the equal protection clause of the U.S. Constitution. Critics also noted state code already includes medical malpractice laws.

Stubblefield's bill defines a "gender transition procedure" as medical procedures that aim to alter "or remove physical or anatomical characteristics or features that are typical for the individual's biological sex." Procedures covered by the bill also include those seeking to instill "or create physiological or anatomical characteristics that resemble a sex different from the individual's biological sex."

The bill specifically points to "puberty-blocking drugs," "cross-sex hormones" and "genital or nongenital gender reassignment surgery."

When presenting his bill, Stubblefield objected to how he perceived physicians throughout the United States use these treatments and said at least one doctor "explained that attempting to change someone's sex creates a permanent patient."

Stubblefield said physicians performing "gender transition procedures" were "putting money ahead of our children" in a "lucrative, lucrative business."

He pointed to other countries including the United Kingdom, Sweden and Finland where institutions had stopped offering services "because it wasn't working out like they had planned. These children were not responding like they had planned."

Opponents speaking against the bill later objected to Stubblefield's assessment of gender transition care offered in Europe.

Under the bill, a health care professional who performs a "gender transition procedure" is liable to the minor if the minor is "injured, including without limitation any physical, psychological, emotional, or physiological injury, by the gender transition procedure, related treatment, or the after-effects of the gender transition procedure or related treatment."

A minor injured by a "gender transition procedure" or a representative for the minor would be permitted by the bill to bring a civil action against the health professional for declaratory or injunctive relief, compensatory damages, punitive damages and attorney's fee and costs.

The bill includes a "safe harbor" section, which would provide health care professionals with a defense against legal action. Among other requirements, health care professionals would have to document a minor's "perceived gender or perceived sex for two (2) continuous years" and receive the voluntary and informed consent of the minor and their parents before performing a procedure.

For minors who "suffered from a mental health concern," at least two health care professionals, including at least one mental health professional, would have to certify in writing that "the gender transition procedure was the only way to treat the mental health concern."

At least two professionals, including at least one mental health professional, also would have to certify in writing that "the minor suffered from no other mental health concerns, including without limitation depression, eating disorders, autism, attention deficit hyperactivity disorder, intellectual disability, or psychotic disorders."

When asking questions about the bill, Tucker drew comparisons between Stubblefield's bill and an Arkansas law passed by the Legislature in 2021 that bans gender affirming care for minors.

The law led to an extended legal battle culminating in a trial that concluded in December. The judge in the case has not yet issued a ruling.

Tucker noted the physicians in Arkansas performing care regulated by the law testified that there were approximately 20 children per year who receive this care. In all cases, parents were involved, Tucker said.

Tucker also pointed to testimony from medical organizations, including the American Medical Association and the American Academy of Pediatrics, that called treatments safe if properly administered.

"We're painting with a very broad brush when we use terms like child abuse and mutilation," he said. "There's not one case in Arkansas history, nor could anyone point to today, of gender reassignment surgery for a minor."

Stubblefield said it was hard to know how prevalent these types of surgeries, or any surgeries, were in Arkansas.

"We don't know who gets surgeries and who don't," he said. "I don't know who's getting a gallbladder removed this morning."

Dr. Janet R. Cathey spoke against the bill, saying the bill "addresses a very specific medical condition as it applies to monitors" and argued that it did set a treatment of care for the condition.

"I think the bill puts into law the definition of one medical diagnosis and it determines the way that I would have to treat that condition," she said. "It says medical care is not determined by medical science but by law."

Sen. Bart Hester, R-Cave Springs, asked Cathey if she believed a minor could make life-altering decisions for themselves. Cathey noted that parental consent would always be required for any type of procedure on a minor.

Hester said he felt a person would have to turn 18 years old before that person could make life-altering decisions.

"Society says that. ... It is, I agree, somewhat arbitrary ... you have to agree somewhere," he said.

Tucker questioned why the bill would address puberty blocking drugs for children experiencing gender dysphoria but not for children who receive the drugs for conditions including precocious puberty.

Michael Cantrell, with the Arkansas attorney general's office, said children who are older than the typical precocious puberty patient are at higher risk of developing osteoporosis when taking puberty blocking drugs.

Tucker pointed to a 2021 U.S. Supreme Court case involving a Texas abortion law in which justices raised concerns about exposing constitutional rights to civil action.

"My question is, if states start passing laws using private enforcement to prevent constitutional rights from being protected, in this case equal protection, what's to prevent another state, not this state, from passing a law that says every gun dealer who sells a gun is responsible and liable for damages caused by the gun for a statute of limitation period of 30 years?" he said.

Testimony during the more than two hours of discussion became heated at times. Sen. Matt McKee, R-Pearcy, drew disapproval from many of those gathered when he asked a transgender woman who spoke against the bill if she had a penis.

In its definition of "gender transition procedures," the bill excludes several treatments including services to "persons born with a medically verifiable disorder of sex development" and any "procedure undertaken because the individual suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the individual in imminent danger of death or impairment of major bodily function unless surgery is performed."