Tennessee Legislature Passes Bill to Protect Minors from Gender Transition Procedures with Bipartisan Support

The Tennessee House voted 77-16 on Thursday to prohibit health care providers from performing gender transition medical procedures on a minor, with three Democrats joining all Republicans to approve the bill (SB 1). The bill, which already passed the state Senate 26-6 on February 13, now heads to the desk of Governor Bill Lee (R), who has indicated he will sign it.

Tennessee House Majority Leader William Lamberth (R) and Tennessee Majority Leader Jack Johnson (R) introduced identical bills (HB 1 and SB 1, respectively) on the day after the November 2022 election. The bills aimed to improve upon a brief 2021 ban on health care prescribers prescribing gender transition hormone treatments to minors.

In October 2022, conservative activists exposed Vanderbilt University Medical Center for advertising gender transition medication to minors as young as 13, performing double mastectomies on adolescent girls, and pursuing other gender transition surgeries because they were “huge money makers.”

“When a child has gender dysphoria or body dysphoria, when they are uncomfortable with their appearance, the worst thing you could possibly do is say, ‘Well, if we just start cutting off body parts or giving you medication that was never designed for this, that will alter your body forever.’ That’s the worst thing you can do,” said Lamberth.

The Senate version of the bill moved more quickly, passing the full chamber on February 13. On February 23, the state House substituted SB 1 — which had already passed the Senate — in place of HB 1, voted to table three amendments, and passed the bill.

As passed, SB 1 forbids “a healthcare professional, establishment, or facility” from “surgically removing, modifying, altering, or entering into tissues, cavities, or organs” of a minor or “prescribing, administering, or dispensing any drug or device” to a minor “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.” Tennessee defines a minor as any individual under age 18.

SB 1 contains a major exception for a gender transition procedure if “the performance or administration of the medical procedure on the minor began prior to the effective date of this act,” which would be July 1.

SB 1 would enforce its prohibition on gender transition procedures for minors in three ways. First, it creates a private right of action whereby an injured minor (or the minor’s parents, in some cases) can “recover compensatory damages, punitive damages, and reasonable attorney’s fees, court costs, and expenses” from those who inflicted the injury — including his or her parents, if they consented the procedure — for up to 30 years after the violation. Such a provision could lead to an increase in lawsuits among members of the growing detransitioner movement, who often suffer long-term health issues due to gender transitions procedures.

Second, SB 1 empowers the state attorney general and reporter (one title) “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.” The state’s top lawyer can learn of these violations either from a court overseeing a private cause of action or from a direct reporting system.

Third, SB 1 authorizes the relevant licensing authorities to discipline any licensed health care professional who performs a gender transition procedure on minors.

The enforcement mechanisms of Tennessee’s SB 1 parallel those in North Dakota’s H.B. 1301, a bill which failed to pass the North Dakota House. North Dakota opted instead to pass a bill creating penalties for gender transition procedures, an enforcement mechanism not included in the Tennessee bill.

The Tennessee chapter of the ACLU has already vowed to fight SB 1 in court if it becomes law.

The Family Action Council of Tennessee (FACT) has expressed concern that the bill’s legislative findings are not robust enough to survive the ACLU’s court challenge, and might in fact “allow a federal court to (1) affirm the United States Supreme Court’s understanding in Obergefell v. Hodges that persons are strictly autonomous beings without a given human nature as male and female and (2) apply that understanding … to allow the parent-child relationship to be redefined.” FACT President David Fowler explained on “Washington Watch,” “Essentially, legislative findings are the legislature’s instructions to the judge on how to interpret the statute.”

FACT urged the Tennessee legislature to amend the problematic legislative finding, but the House narrowly voted (51-41) to table that amendment before the bill’s final passage on Thursday.

In a statement to The Washington Stand, Fowler said of the bill’s passage:

“Tennessee’s legislature voted, by an overwhelming margin, to make it clear that persons who believe they have been injured by ‘gender affirming or gender transitioning care’ provided to them as minors have 30 years after they reach adulthood to bring a cause of action for monetary damages against participating healthcare providers. This threat of litigation will work to make this kind of ‘care’ unlikely in the future.”

If Governor Lee signs SB 1, Tennessee will become the third state to pass a bill protecting minors from gender transition procedures in 2023. Utah passed the first bill, which contained “massive loopholes” but leaders insisted it was better than nothing. South Dakota passed the second bill, with robust language after public pressure redeemed a scuttled attempt three years ago. Tennessee is now poised to pass the third bill of the 2023 state legislative session, an incremental improvement over their 2021 stub, but a bill that still leaves room for improvement.

Arkansas (2021) and Alabama (2022) previously passed laws to protect minors from gender transition procedures, but both laws are currently tied up in court.

Other state legislatures that are actively moving legislation to protect minors from gender transition procedures include Idaho, Kansas, Missouri, Montana, Nebraska, North Dakota, and Oklahoma.