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.