[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5730 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 5730
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 26, 2021
Ms. Garcia of Texas (for herself, Mr. Takano, Mr. Raskin, Ms. Pressley,
Mr. Quigley, Ms. Jackson Lee, and Mr. Payne) introduced the following
bill; which was referred to the Committee on Ways and Means
_______________________________________________________________________
A BILL
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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