Bill would provide civil cause of action for harm caused by gender procedures

GOP lawmakers in the state legislature have introduced legislation they say would hold doctors accountable for irreversible gender procedures on minors, creating a civil cause of action for people injured by such procedures as minors.

Under the proposed legislation, people having gender transition surgeries or procedures while under the age of 18 would be allowed to file a civil lawsuit against the health care provider if they suffered injury as a result. There would also be an extended statute of limitations, permitting claims to be brought up until the age of 33.

One of the bill’s authors, Rep. Amanda Nedweski (R–Pleasant Prairie), said the extended statute of limitations acknowledges that the consequences of such procedures may not fully emerge until adulthood. She also pointed a finger at those profiting from transgender procedures on minors and said they should be held accountable.

“Pharmaceutical companies and health care providers have built an extremely lucrative business model that preys on vulnerable children, generating billions of dollars annually,” Nedweski said. “As doctors continue to promote so-called ‘gender-affirming care’ for young children — despite the lack of long-term studies on potential side effects — it’s essential that we provide victims of harmful gender treatments with the same type of legal recourse as anyone else hurt by a medical professional.”

Gender dysphoria has not been a traditionally common disorder but has exploded in recent times, Nedweski said.

“Gender dysphoria has historically been exceedingly rare, affecting less than 0.01 percent of the population,” she said. “But in recent years, diagnoses have skyrocketed. Between 2017 and 2021, the number of children ages 6–17 diagnosed with gender dysphoria increased by 178 percent. This surge is largely driven by the medical establishment’s aggressive push to prescribe harmful drugs like puberty blockers, creating lifelong pharmaceutical dependency.”

Recent estimates place the lifetime cost of medical transition between $87,000 and $410,000 for biological males, with costs for biological females potentially exceeding $600,000, Nedweski said. In 2022 alone, the global sex reassignment surgery market was valued at $4.12 billion.

“Medical accountability should not be a partisan issue,” she said. “We have a duty to ensure children are protected from experimental treatments that can inflict lasting damage on their bodies and minds as they mature.”

State Sen. Rob Hutton (R-Brookfield) introduced companion legislation. The senator said the legislation seeks to address growing concerns about the long-term consequences of medical interventions, including puberty blockers, hormone therapy, in addition to surgeries, which he said are increasingly performed on minors who present with mental health challenges.

Hutton said the bill would encompass physical, psychological, emotional, or physiological harm from such interventions.

“This bill is ultimately about protecting kids by ensuring accountability for life-altering decisions made by others,” Hutton said. “There are many unknowns about the long-term effects of these interventions, and yet they are being administered in greater numbers to young people. Children who are harmed by an irreversible gender transition procedure should have the same right to seek justice when they reach adulthood as any other patient who suffered harm.”

The bill addresses known risks such as reduced bone density, cardiovascular complications, and impaired fertility and a host of other unknowns resulting from the lack of definitive long-term research on those treatments, Hutton said. He said the bill includes safeguards, providing legal protections for medical providers who meet stringent due diligence standards before performing such procedures, as well as exceptions for medically necessary cases.

“This bill is not a mandate or a sanction,” he said. “It simply ensures that children who were administered irreversible treatments and suffered long-term adverse consequences have legal options available to them as adults.”

Tennessee ruling

The legislation comes on the heels of a U.S. Supreme Court decision upholding a law that prohibits certain medical procedures for transgender minors. 

The vote was 6-3, and it paves the way for more states to pass outright bans or legislation such as Hutton’s and Nedweski’s bills. To date, almost half of all states have some form of laws restricting gender procedures on minors. 

In U.S. v Skrmetti, the high court upheld Tennessee’s ban, concluding that the law does not violate the Equal Protection Clause of the Fourteenth Amendment. 

According to the court decision, in 2023, Tennessee joined a growing number of states restricting sex transition treatments for minors by enacting the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity. The law prohibits health care providers from prescribing, administering, or dispensing puberty blockers or hormones to any minor for the purpose of enabling the minor to identify with, or live as, a purported identity inconsistent with the minor’s biological sex, or treating purported discomfort or distress from a discordance between the minor’s biological sex and asserted identity. 

At the same time, the court stated, the law permits a healthcare provider to administer puberty blockers or hormones to treat a minor’s congenital defect, precocious puberty, disease, or physical injury.

In the case, three transgender minors, their parents, and a doctor challenged the law under the Equal Protection Clause of the Fourteenth Amendment. They argued that they were being discriminated against because the same medications that are banned for minors with gender dysphoria were permitted for other minors with conditions such as endometriosis and early or late onset puberty.

The court disagreed, saying the law did not turn on sex-based classifications. 

“The law does not prohibit certain medical treatments for minors of one sex while allowing those same treatments for minors of the opposite sex,” the decision written by chief justice John Roberts states. “SB1 prohibits healthcare providers from administering puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender incongruence, regardless of the minor’s sex; it permits providers to administer puberty blockers and hormones to minors of any sex for other purposes. And, while a state may not circumvent the Equal Protection Clause by writing in abstract terms, SB1 does not mask sex-based classifications.”

The court also rejected the plaintiffs’ argument that the law enforces a government preference that people conform to expectations about their sex. 

“To start, any allegations of sex stereotyping are misplaced,” the decision stated. “True, a law that classifies on the basis of sex may fail heightened scrutiny if the classifications rest on impermissible stereotypes. But where a law’s classifications are neither covertly nor overtly based on sex, the law does not trigger heightened review unless it was motivated by an invidious discriminatory purpose. No such argument has been raised here. And regardless, the statutory findings on which SB1 is premised do not themselves evince sex-based stereotyping.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.