To amend part E of title IV of the Social Security Act to require States to prohibit genital surgery on foster children with variations in sex characteristics who are under six years of age as a condition of receiving grants under such part.
Bill: H.R.5730 | Sponsor: Rep. Garcia, Sylvia R. (D-TX)
Policy area: Families

Summary:
This bill requires states receiving federal payments for foster care and adoption assistance to prohibit specified surgeries from being performed on foster children under the age of six who are born with variations in the development, appearance, or function of their physical sex characteristics.

To amend part E of title IV of the Social Security Act to require 
 States to prohibit genital surgery on foster children with variations 
in sex characteristics who are under six years of age as a condition of 
                   receiving grants under such part.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PREAMBLE.

    (a) The Congress opposes all forms of prejudice, bias, and 
discrimination, and affirms its commitment to the dignity and autonomy 
of all people, including those born with variations in their physical 
sex characteristics. The Congress especially notes the importance of 
protecting children within the guardianship of the foster care system.
    (b) ``Variations in physical sex characteristics'' is an umbrella 
term used to describe a wide range of natural bodily variations in 
traits including genitals, gonads, hormone function, and chromosomal 
patterns.
    (c) People born with variations in their physical sex 
characteristics are a part of the fabric of the Nation's diversity and 
are equally entitled to dignity and bodily autonomy.
    (d) People born with variations in their physical sex 
characteristics are regularly subjected in infancy to surgeries to 
change the appearance or function of those variations, even though such 
surgeries may result in lasting harm.
    (e) The Congress recognizes that surgeries on infants with 
variations in their physical sex characteristics are often justified by 
generalized assumptions about people's preferences about their bodies' 
appearance and function. These assumptions perpetuate gender 
stereotypes and may not reflect an individual's actual preferences when 
they are capable of articulating their wishes.
    (f) Not all persons with variations in their physical sex 
characteristics will need or desire the surgeries that may be 
recommended or performed on them in infancy. People born with 
variations in their physical sex characteristics should be free to 
choose whether to undergo surgeries that impact not only their bodily 
autonomy but also their reproductive and sexual futures.
    (g) The Congress recognizes that leading pediatric hospitals have 
begun to institute partial bans on these surgeries on patients who are 
too young to participate in a meaningful discussion of the implications 
of these surgeries.
    (h) Therefore, the Congress calls upon the States to hold health 
professionals responsible for safeguarding the bodily autonomy of 
people born with variations in their physical sex characteristics and 
ensuring patient-centered care that conforms with best practices in the 
medical profession by ending the practice of performing specified 
surgeries on such children when they are under the age of six and the 
surgery is not required to address an immediate risk of physical harm, 
as provided.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Individuals with variations in their physical sex 
        characteristics may present with differences in genital 
        anatomy, internal reproductive structures, chromosomes, or 
        hormonal variations. ``Intersex'' refers to the variety of 
        different physical indicators that create those differences. As 
        many as 1.7 percent of babies are born with physical sex 
        characteristics which do not conform to the expectations for a 
        typical male or female. The vast majority of babies born with 
        these variations do not require surgical intervention related 
        to their physical sex characteristics immediately, if at all.
            (2) Beginning in the 1950s physicians in the United States 
        began performing irreversible surgeries (often referred to as 
        genital-normalizing surgeries) on infants with variations in 
        their physical sex characteristics without medical 
        justification.
            (3) As many as two-thirds of these irreversible surgeries 
        occur on infants under the age of two. A literature review of 
        genital surgery conducted on children with variations in their 
        physical sex characteristics published in the Journal of 
        Steroid Biochemistry and Molecular Biology found that between 
        2005 and 2012 the average age of patients was 11.2 months old 
        and the median age was 9.9 months at initial surgery.
            (4) These surgeries, which include unnecessary infant 
        vaginoplasties, clitoral reductions and recessions, and removal 
        of gonadal tissues, are often performed before a child can even 
        speak or stand, meaning the individual is excluded from the 
        decision whether to undergo these irreversible procedures.
            (5) There is evidence that these surgeries cause severe 
        psychological and physiological harm when performed without the 
        informed consent of the individual. These harms may include 
        scarring, chronic pain, urinary incontinence, loss of sexual 
        sensation and function, sterilization, depression, post-
        traumatic stress disorder, suicidality, and incorrect gender 
        assignment.
            (6) A number of domestic and international human rights 
        organizations have conducted thorough inquiries into genital 
        surgeries on infants with variations in their physical sex 
        characteristics and have concluded that these procedures are 
        cruel and catastrophic, as follows:
                    (A) The United Nations Special Rapporteur on 
                Torture and Other Cruel, Inhuman or Degrading Treatment 
                or Punishment explained in 2013, ``children who are 
                born with atypical sex characteristics are often 
                subject to irreversible sex assignment, involuntary 
                sterilization, involuntary genital normalizing surgery, 
                performed without their informed consent, or that of 
                their parents, `in an attempt to fix their sex,' 
                leaving them with permanent, irreversible infertility 
                and causing severe mental suffering.''.
                    (B) The United Nations High Commissioner for Human 
                Rights explained in 2015, ``medically unnecessary 
                surgeries and other invasive treatment of intersex 
                babies and children . . . are rarely discussed and even 
                more rarely investigated or prosecuted. . . . The 
                result is impunity for the perpetrators; lack of remedy 
                for victims; and a gap between legislation and the 
                lived realities of intersex people.''.
                    (C) The World Health Organization explained in 
                2015, that children with variations in their physical 
                sex characteristics have been ``subjected to medically 
                unnecessary, often irreversible, interventions that may 
                have lifelong consequences for their physical and 
                mental health, including irreversible termination of 
                all or some of their reproductive and sexual capacity. 
                . . . Human rights bodies and ethical and health 
                professional organizations have recommended that free 
                and informed consent should be ensured in medical 
                interventions for people with intersex conditions, 
                including full information, orally and in writing, on 
                the suggested treatment, its justification and 
                alternatives.''.
                    (D) Physicians for Human Rights has ``call[ed] for 
                an end to all medically unnecessary surgical procedures 
                on intersex children before they are able to give 
                meaningful consent to such surgeries.''.
                    (E) Human Rights Watch concluded that these 
                surgeries are ``often catastrophic, the supposed 
                benefits are largely unproven, and there are generally 
                no urgent health considerations at stake. Procedures 
                that could be delayed until intersex children are old 
                enough to decide whether they want them are instead 
                performed on infants who then have to live with the 
                consequences for a lifetime.''.
            (7) Intersex advocacy groups led by individuals with 
        variations in their physical sex characteristics themselves 
        advocate for the postponing or banning of these surgeries, as 
        follows:
                    (A) Those subjected to surgery to alter their 
                variations in sex characteristics at a young age 
                express despair over the fact that they were unable to 
                make these decisions for themselves, publishing about 
                their experiences in major news outlets: ``I know 
                firsthand the devastating impact [these surgeries] can 
                have, not just on our bodies but on our souls. We are 
                erased before we can even tell our doctors who we are. 
                Every human rights organization that has considered the 
                practice has condemned it, some even to the point of 
                recognizing it as akin to torture.''.
                    (B) Young people born with variations in their 
                physical sex characteristics who have been able to 
                participate in these life-altering decisions are 
                thriving, such as a young California resident with 
                variation of sex characteristics who was not forced to 
                undergo surgery in infancy and instead participated in 
                the decision at the age of 16. They told reporters that 
                for them, surgery ``was the right choice, but that's 
                very much an anomaly for intersex people. . . . The 
                important thing was that I was old enough to make that 
                decision for myself.''.
            (8) The United States Department of State has acknowledged 
        Intersex Awareness Day in both 2016 and 2017 by recognizing the 
        harm of these surgeries. In both years the Department released 
        statements recognizing that ``at a young age, intersex persons 
        routinely face forced medical surgeries without free or 
        informed consent. These interventions jeopardize their physical 
        integrity and ability to live freely.''.
            (9) In light of ongoing advocacy by the intersex community, 
        in 2005 the San Francisco Human Rights Commission performed an 
        investigation into this topic and issued an in-depth report, 
        recommending that ```normalizing' interventions should not 
        occur in infancy or childhood. Any procedures that are not 
        medically necessary should not be performed unless the patient 
        gives their legal consent.''.
            (10) Physicians who have participated in these surgeries 
        have also expressed remorse that their training did not 
        properly prepare them to respect the bodily autonomy of people 
        born with variations in their physical sex characteristics. As 
        a Stanford-educated urologist explains: ``I know intersex women 
        who have never experienced orgasm because clitoral surgery 
        destroyed their sensation; men who underwent a dozen penile 
        surgeries before they even hit puberty; people who had false 
        vaginas created that scarred and led to a lifetime of pain 
        during intercourse . . . the psychological damage caused by 
        intervention is just as staggering, as evidenced by generations 
        of intersex adults dealing with post-traumatic stress disorder, 
        problems with intimacy and severe depression. Some were even 
        surgically assigned a gender at birth, only to grow up 
        identifying with the opposite gender.''.
            (11) When the physical health of an infant born with 
        variations in their physical sex characteristics is threatened 
        and medical attention cannot be safely deferred, all 
        therapeutic treatment options should remain available to 
        children, families, and medical professionals to ensure that 
        the imminent physical danger is addressed.
            (12) The United States should serve as a model of competent 
        and ethical medical care and has a compelling interest in 
        protecting the physical and psychological well-being of 
        children, including those born with variations in their 
        physical sex characteristics.

SEC. 3. STATES REQUIRED TO PROHIBIT SPECIFIED SURGERIES ON FOSTER 
              CHILDREN WITH VARIATIONS IN SEX CHARACTERISTICS WHO ARE 
              UNDER 6 YEARS OF AGE, AS A CONDITION OF PARTICIPATION IN 
              THE FEDERAL FOSTER CARE AND ADOPTION ASSISTANCE PROGRAM.

    (a) State Plan Requirement.--Section 471 of the Social Security Act 
(42 U.S.C. 671) is amended--
            (1) in subsection (a)--
                    (A) by striking ``and'' at the end of paragraph 
                (36);
                    (B) by striking the period at the end of paragraph 
                (37) and inserting ``; and''; and
                    (C) by adding at the end, the following:
            ``(38) provides that the State shall have in effect the 
        laws and procedures described in subsection (f), which shall 
        specify appropriate penalties and enforcement mechanisms 
        described in subsection (f)(3) to ensure compliance with the 
        laws and procedures.''; and
            (2) by adding at the end the following:
    ``(f) State Laws and Procedures To Prohibit Genital Surgery on 
Foster Children Born With Variations in Their Physical Sex 
Characteristics Who Are Under 6 Years of Age.--
            ``(1) In general.--The laws and procedures described in 
        this subsection are laws and procedures which prohibit a 
        physician who is licensed to provide medical care under State 
        law from performing any of the following surgeries on a foster 
        child who has not attained 6 years of age and who is an 
        individual born with variations in their physical sex 
        characteristics:
                    ``(A) Clitoroplasty, clitoral reduction, or 
                clitoral recession, including corporal-sparing 
                procedures.
                    ``(B) Gonadectomy.
                    ``(C) Vaginoplasty, urogenital sinus mobilization, 
                or vaginal exteriorization.
            ``(2) Definitions.--In paragraph (1):
                    ``(A) Individual born with variations in their 
                physical sex characteristics.--The term `individual 
                born with variations in their physical sex 
                characteristics' means an individual born with physical 
                traits, including genitals, gonads, hormone function, 
                or chromosomal patterns, that vary from stereotypical 
                notions regarding the development, appearance, or 
                function of sex characteristics.
                    ``(B) Surgery required to address an immediate risk 
                of physical harm.--The term `surgery required to 
                address an immediate risk of physical harm' means--
                            ``(i) surgery to remove tissue that is 
                        malignant;
                            ``(ii) surgery to create an opening to 
                        allow urine or feces to exit the body where an 
                        opening is underdeveloped or not present;
                            ``(iii) surgery to reposition internal 
                        organs that formed outside of the body;
                            ``(iv) surgery that is required to treat 
                        complications of a previous surgery and cannot 
                        be delayed without increasing physical health 
                        risks to the patient; and
                            ``(v) any other surgery necessary to 
                        preserve life in the event of a medical 
                        emergency.
            ``(3) Enforcement.--
                    ``(A) In general.--The relevant licensing entity of 
                the State shall consider a violation of a State law or 
                procedure described in paragraph (1) to be 
                unprofessional conduct, and shall discipline any 
                violator of such a law or procedure accordingly.
                    ``(B) Concurrent authority.--The relevant 
                department of health or regulatory body of a State 
                shall have concurrent authority to initiate proceedings 
                to address violations of a State law or procedure 
                described in paragraph (1).
            ``(4) Rule of interpretation.--This subsection shall not be 
        interpreted to require a State to impose liability on a 
        hospital at which a violation of a State law or procedure 
        described in paragraph (1) occurs.''.
    (b) Effective Date.--
            (1) In general.--The amendments made by subsection (a) 
        shall take effect on the 1st day of the 1st calendar quarter 
        that begins 1 year or more after the date of the enactment of 
        this Act, and shall apply to payments under part E of title IV 
        of the Social Security Act for calendar quarters beginning on 
        or after such date.
            (2) Delay permitted if state legislation required.--If the 
        Secretary of Health and Human Services determines that State 
        legislation (other than legislation appropriating funds) is 
        required in order for a State plan developed pursuant to part E 
        of title IV of the Social Security Act to meet the additional 
        requirements imposed by the amendments made by subsection (a), 
        the plan shall not be regarded as failing to meet any of the 
        additional requirements before the 1st day of the 1st calendar 
        quarter beginning after the 1st regular session of the State 
        legislature that begins 1 year or more after the date of the 
        enactment of this Act. For purposes of the preceding sentence, 
        if the State has a 2-year legislative session, each year of the 
        session is deemed to be a separate regular session of the State 
        legislature.
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