SAFE Act-Style Bill Advances in Tennessee Legislature
A bill to protect minors from gender transition procedures advanced in Tennessee, after the Senate Health and Welfare Committee recommended the bill for passage with amendment on Wednesday by an 8-1 vote. The bill, SB 0001, now advances to the Senate Judiciary Committee, which will consider it on February 7.
An identical bill, HB 0001, is advancing simultaneously in the Tennessee House. In a voice vote on Tuesday, the Health Subcommittee within the Health Committee recommended the bill for passage with amendment by a voice vote. Only one out of nine subcommittee members requested his vote to be recorded as a “no.” The subcommittee referred it to the entire Health Committee, after which it will pass to the Civil Justice Committee.
The bill prohibits “a medical procedure if the performance or administration of the procedure is for the purpose of: (1) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or (2) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” It defines “medical procedure” to include “(A) Surgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being; or (B) Prescribing, administering, or dispensing any drug or device to a human being.” This would prohibit all forms of gender transition surgeries, as well as puberty blockers and cross-sex hormones.
The law makes clear that a violation of this prohibition “constitutes a potential threat to public health, safety, and welfare and requires emergency action.”
The contains three means of enforcement. First, a minor “may bring a civil cause of action to recover compensatory damages, punitive damages, and reasonable attorney’s fees, court costs, and expenses,” if injured by a prohibited procedure, for 30 years after reaching adulthood. Obtaining consent from the minor does not protect healthcare providers from legal liability. The minor may also sue his or her parents if they consented to the procedure. However, if the parents did not consent, they may also bring a civil cause of action on the minor’s behalf, and may even bring a wrongful death action if a minor dies as a “result of the physical or emotional harm inflicted upon the minor.” This covers multiple scenarios, from parents participating in the harm inflicted on their minor child, to parents who are completely in the dark about the whole affair.
Second, the state attorney general and reporter (one title) may also bring an action within 20 years of the violation “to enjoin further violations, to disgorge any profits received due to the medical procedure, and to recover a civil penalty of twenty-five thousand dollars ($25,000) per violation.” This aims to eliminate the profit motive for healthcare institutions by both taking away the profit from a gender transition procedure and slapping a hefty fine on top. The state AG may set up a process for reporting violations; he may also act on information provided by a court from a private action.
Third, the bill authorizes the “appropriate regulatory authority” to take “emergency action” to sanction a licensed individual found in violation. Such action could include denial, withholding, or suspension of a license, as well as other disciplinary measures.
One major exception to the bill is “the performance or administration of the medical procedure on the minor began prior to the effective date of this act,” which is July 1, 2023. This effectively grandfathers-in any gender transition procedures currently being performed on minors (or begun before July 1), as it only requires the physician prescribing the gender transition procedure to certify in writing that “ending the medical procedure would be harmful to the minor.”
The bill repeals and replaces a shorter, vaguer prohibition on gender transition hormone treatments passed in 2021.
These sister bills (SB 0001 and HB 0001) represent a top priority for Tennessee Republicans. Both bills are numbered as the very first bills filed in this legislative session. In fact, both bills were filed for introduction on November 9, 2022, the day after the election. Senate Majority Leader Jack Johnson (R) is the prime sponsor of SB 0001, along with nine co-prime sponsors (nearly one third of the Senate). House Majority Leader William Lamberth (R) is the prime sponsor of HB 0001, along with 44 co-prime sponsors (nearly one half of the House).
In 2021, a briefer ban on gender transition hormones passed the Senate (24-6) and House (67-24) by wide margins and was signed by current Governor Bill Lee (R). In October 2022, the Tennessee House GOP Caucus authored a letter of concern to Vanderbilt University after its medical center was exposed for performing gender transition surgeries on minors. Republicans hold a 27-6 majority (81%) in the Senate and a 75-24 majority (75%) in the House.
The Tennessee legislative session must end by May 4, 2023.
Joshua Arnold is a staff writer at The Washington Stand.