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A BILL TO BE ENTITLED
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AN ACT
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relating to prohibited nonconsensual genital surgery on certain |
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minors with intersex traits. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 266.001 through 266.012, Family Code, |
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are designated as Subchapter A, Chapter 266, Family Code, and a |
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heading is added to Subchapter A to read as follows: |
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SUBCHAPTER A. GENERAL PROVISIONS; EDUCATIONAL SERVICES; MEDICAL |
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CARE |
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SECTION 2. Chapter 266, Family Code, is amended by adding |
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Subchapter B to read as follows: |
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SUBCHAPTER B. MEDICAL PROCEDURES AND TREATMENTS RELATED TO |
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INTERSEX TRAITS |
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Sec. 266.051. DEFINITIONS. In this subchapter: |
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(1) "Intersex child" means an individual who is |
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younger than 18 years of age and either: |
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(A) has inborn chromosomal, gonadal, genital, or |
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endocrine characteristics, or a combination of those |
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characteristics, that are not suited to the typical definition of |
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male or female or are atypical for the sex assigned; or |
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(B) is considered by a medical professional to |
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have inborn chromosomal, gonadal, genital, or endocrine |
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characteristics that are ambiguous or atypical for the sex |
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assigned. |
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(2) "Medical procedure or treatment related to an |
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intersex trait" includes genital surgery, gonadal surgery, or |
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hormonal treatment to treat or modify an intersex trait. |
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(3) "Medically necessary" means a medical procedure or |
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treatment immediately necessary to treat an injury, illness, |
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disease, or condition affecting the intersex child's health that if |
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delayed would adversely affect the intersex child's physical |
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health. |
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Sec. 266.052. REQUIREMENTS FOR CERTAIN MEDICAL PROCEDURES |
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OR TREATMENTS. A physician may not perform a medical procedure or |
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treatment related to an intersex trait on a foster child younger |
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than 12 years of age unless: |
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(1) the procedure or treatment is medically necessary |
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for the physical health of the child and the department consents to |
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the procedure or treatment; or |
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(2) the procedure or treatment is not medically |
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necessary for the physical health of the child and a court |
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authorizes the procedure or treatment as provided under this |
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subchapter. |
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Sec. 266.053. COURT APPROVAL OF CERTAIN MEDICAL PROCEDURES |
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OR TREATMENTS. (a) If the department or an intersex child's |
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physician wants the child to undergo a medical procedure or |
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treatment related to an intersex trait that is not medically |
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necessary for the physical health of the child, the department or |
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physician may file a petition with the court having continuing |
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jurisdiction over the intersex child seeking court approval of the |
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procedure or treatment. |
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(b) The court shall hold a hearing to determine whether the |
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proposed medical procedure or treatment related to an intersex |
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trait is in the child's best interest. |
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(c) The child must be represented by an attorney at the |
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hearing. The attorney for the child must: |
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(1) possess adequate knowledge of intersex traits, the |
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intersex population, and the range of medical procedures or |
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treatments that may be pursued in connection with the child's |
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intersex trait, including the option to delay any procedure or |
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treatment; |
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(2) communicate with the child, to the extent possible |
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given the child's age, regarding: |
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(A) the nature of the proposed medical procedure |
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or treatment; |
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(B) the extent to which the proposed medical |
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procedure or treatment is irreversible; and |
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(C) the projected outcome of, the possible risks |
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associated with, and the alternatives, including delay, to the |
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proposed medical procedure or treatment; |
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(3) interview the child, to the extent possible given |
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the child's age, to determine the child's wishes regarding the |
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pursuit or delay of any proposed medical procedure or treatment; |
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(4) assist the child, to the extent possible given the |
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child's age, in assessing the child's desires related to the child's |
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medical care and in communicating the child's desires to the court; |
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and |
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(5) for a child younger than 12 years of age, argue |
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against a proposed medical procedure or treatment that is not |
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medically necessary for the physical health of the child. |
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(d) Any party to the suit may submit to the court a report or |
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introduce evidence from a qualified expert on: |
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(1) intersex traits and the intersex population in |
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general; |
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(2) the child's specific intersex traits; |
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(3) the range of medical procedures and treatments |
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that may be pursued in connection with the child's intersex traits, |
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including delay; |
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(4) the specific medical procedure or treatment |
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proposed for the child, including the risks and anticipated |
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benefits associated with the procedure or treatment and the |
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possibility that the child's ultimate gender identity may differ |
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from the sex assigned; |
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(5) the extent to which the medical procedure or |
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treatment: |
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(A) is irreversible; and |
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(B) may safely be delayed until the child is of an |
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age to participate in the decision-making process; |
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(6) the physician's responsibilities to obtain |
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informed consent from the child and the child's parent or guardian |
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and whether those responsibilities have been adequately |
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discharged; and |
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(7) the public statements of intersex individuals or |
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patient advocates regarding Subdivisions (1)-(6). |
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(e) Following the hearing, the court shall determine |
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whether the proposed medical procedure or treatment related to an |
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intersex trait is in the child's best interest and render an order |
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with specific findings on: |
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(1) whether clear and convincing evidence establishes |
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that the short-term or long-term physical benefits of the proposed |
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medical procedure or treatment outweigh the short-term or long-term |
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physical risks; |
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(2) whether clear and convincing evidence establishes |
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that the short-term and long-term psychological benefits of the |
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proposed medical procedure or treatment outweigh the short-term or |
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long-term psychological risks; |
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(3) the extent to which the proposed medical procedure |
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or treatment would limit the child's future options for: |
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(A) fertility; |
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(B) development or construction of |
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female-typical characteristics; |
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(C) development or construction of male-typical |
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characteristics; and |
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(D) preservation of body characteristics |
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unaltered by decisions the child did not initiate; and |
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(4) whether clear and convincing evidence establishes |
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that any limitation identified under Subdivision (3) is justified |
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by an urgent need for the proposed medical procedure or treatment. |
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(f) If the requirements of Sections 266.054(1) and (2) are |
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satisfied, the court may consider the child's consent to the |
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proposed medical procedure or treatment related to an intersex |
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trait as clear and convincing evidence for purposes of the court's |
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best-interest determination under Subsection (e). |
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Sec. 266.054. FOSTER CHILD'S CONSENT TO MEDICAL PROCEDURE |
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OR TREATMENT. Notwithstanding Section 32.003 or 266.004 or other |
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law, a foster child 12 years of age or older may consent to a medical |
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procedure or treatment related to an intersex trait if the child: |
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(1) has been evaluated by a physician and a |
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psychologist, both of whom have had previous experience treating |
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patients with intersex traits, and the physician and psychologist |
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determine the child has the maturity necessary to make decisions |
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regarding the child's medical care; and |
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(2) has been provided with the information necessary |
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to enable the child to provide voluntary and informed consent to the |
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proposed medical procedure or treatment, including: |
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(A) the nature of the proposed medical procedure |
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or treatment, including whether and to what extent the proposed |
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procedure or treatment is irreversible; |
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(B) the projected outcome of the proposed medical |
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procedure or treatment, including whether the benefits of the |
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procedure or treatment are medical, psychological, or social, and |
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the strength of the evidence supporting the claims that the |
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procedure or treatment provides each of those benefits; |
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(C) the possible risks associated with the |
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proposed medical procedure or treatment, including, as applicable, |
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loss of reproductive capacity, loss of sexual function or |
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sensation, and the child's ultimate gender identity differing from |
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the sex assigned; and |
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(D) the alternatives to the proposed medical |
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procedure or treatment, including delaying the procedure or |
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treatment. |
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SECTION 3. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2017. |