Bill allowing ‘gender transition’ lawsuits passed by state Senate
A bill aimed at allowing minors injured by a “gender transition procedure” to file a lawsuit against the health professional who performed the procedure cleared the Arkansas Senate on Tuesday.
In a party-line vote, the Senate voted 29-6 to send Senate Bill 199 by Sen. Gary Stubblefield, R-Branch, to the House to consider a Senate amendment to the bill. Twenty-nine Senate Republicans voted for the bill, while six Senate Democrats voted against it.
The amendment to Senate Bill 199 would reduce the statute of limitations for civil action allowed by the bill.
Under the amendment, a minor injured by a “gender transition procedure” or a representative for the minor could sue the health care professional who performed the procedure no later than 15 years after the minor turns 18 or would have turned 18 if the minor dies before turning 18.
The original bill would have allowed lawsuits within 30 years of when the minor turns 18 or would have turned 18.
The current statute of limitations for most medical malpractice cases in Arkansas is two years, according to state law.
Supporters of the bill have questioned the ability of minors to consent to procedures covered by the legislation. Supporters have noted the bill would not outlaw “gender transition procedures,” but would provide legal recourse for those who receive the procedures.
But opponents of the bill contend the bill would make it more difficult for transgender people, especially those with mental illness, to access medical procedures. Critics also have noted state statutes include medical malpractice laws and that Stubblefield’s bill could violate the equal protection clause of the U.S. Constitution.
Sen. Clarke Tucker, D-Little Rock, said Tuesday there are about 20 children in Arkansas who receive gender-affirming care, and it’s “basically a placeholder” to give these children a few years until they reach adulthood and then make decisions with their parents and their doctors after months of consideration.
The bill “is big government stepping in and making the most personal decisions,” he said, and it’s unconstitutional.
“This bill really targets a marginalized and misunderstood community in Arkansas,” Tucker said.
But Sen. Alan Clark, R-Lonsdale, countered that “we are not targeting anybody.
“We are not punishing anybody,” he said. “We are here protecting kids.”
Stubblefield said the Save Adolescents from Experimentation (SAFE) Act of 2021 to ban gender-affirming care for minors was a good bill.
“The problem is it got thrown out, and I hope it comes back,” he said. “But this, in the meantime, we have got kids getting mutilated.”
In 2021, U.S. District Judge James M. Moody Jr., issued a temporary injunction blocking implementation of the law. In November, a federal appeals court denied the state’s petition to reconsider that temporarily injunction
At the end of November, testimony concluded in a federal bench trial that will decide the constitutionality of Arkansas’ first-in-the-nation ban on gender affirming health care for minors. Moody is the presiding judge who will decide on the matter.
Senate Bill 199 defines a “gender transition procedure” as a medical procedure intended to alter “or remove physical or anatomical characteristics or features that are typical for the individual’s biological sex.” The bill also addresses procedures that seek to instill “or create physiological or anatomical characteristics that resemble a sex different from the individual’s biological sex.”
It specifically points to “puberty-blocking drugs,” “cross-sex hormones” and “genital or nongenital gender reassignment surgery.”
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 inductive relief, compensatory damages, punitive damages and attorney’s fees and costs.
The bill includes a “safe harbor” section that would provide health professionals with a defense against legal action.
Among other requirements, health 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 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.”
In defining “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.”