H.R. 10426

[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10426 Introduced in House (IH)]

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118th CONGRESS
2d Session
H. R. 10426

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

December 16, 2024

Ms. Garcia of Texas (for herself, Mr. Pocan, Mr. Takano, Mr. Torres of 
New York, Ms. Bonamici, Ms. Chu, Mr. Frost, Mr. Garcia of Illinois, Mr. 
Green of Texas, Ms. Jacobs, Ms. Jayapal, Ms. Lee of California, Ms. Lee 
of Pennsylvania, Mrs. Lee Carter, Ms. McClellan, Mr. McGovern, Mrs. 
McIver, Ms. Pingree, Ms. Pressley, Mr. Quigley, Mrs. Ramirez, and Ms. 
Tlaib) 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. SHORT TITLE.

This Act may be cited as the ``Protect Intersex Children Act''.

SEC. 2. 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, and may be referred to as ``difference of sex development'' 
or ``intersex''.
(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, without their 
consent, to surgeries to change the appearance or function of those 
variations, even though performing such surgeries may result in lasting 
harm and therefore does not serve the child's best interests.
(e) 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 health.
(f) The Congress recognizes that leading pediatric hospitals have 
begun to institute partial bans on these surgeries on patients with 
variations in their physical sex characteristics who are too young to 
participate in a meaningful discussion of the implications of these 
surgeries, and therefore cannot meaningfully assent or consent to them, 
but the prohibition on non-consensual surgical procedures on pediatric 
patients with differences in sex characteristics should not be 
construed to apply to, regulate, or prohibit surgical procedures 
provided to transgender patients, with the consent of the patients, by 
skilled and knowledgeable surgeons.
(g) 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 to life, as 
provided.

SEC. 3. 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. An estimated 1.7 percent of babies are 
born with genetic, physiological, or anatomical variations that 
can cause their physical sex characteristics to not conform to 
the expectations for a typical male or female baby. 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 and involuntary surgeries (often 
referred to as genital-normalizing surgeries) on infants with 
variations in their physical sex characteristics without 
medical justification.
(3) According to available public records, at least about 
80 percent of these irreversible surgeries occur on infants 
under the age of 2, with even higher figures reported in 
published medical studies. 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 surgical 
enforcement of incorrect gender assignment.
(6) Three former United States Surgeons General who served 
in both Republican and Democratic Administrations, Dr. Joycelyn 
Elders, Dr. David Satcher, and Dr. Richard Carmona, issued a 
statement calling for a moratorium on medically unnecessary 
surgeries on intersex children too young to participate in the 
decision, noting that, ``Cosmetic genitoplasty should be 
deferred until children are old enough to voice their own view 
about whether to undergo the surgery. Those whose oath or 
conscience says `do no harm' should heed the simple fact that, 
to date, research does not support the practice of cosmetic 
infant genitoplasty.''.
(7) 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 performing these 
procedures, inextricably without the consent of the infants, is 
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, 
[or] performed without their informed consent . . . `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 that non-consensual 
``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, when performed without consent, 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.''.
(8) 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.''.
(9) Intersex advocacy groups led by individuals with 
variations in their physical sex characteristics themselves 
advocate for the postponing or banning of these surgeries. 
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 non-consensual 
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.''.
(10) The United States Department of State has acknowledged 
Intersex Awareness Day under the Obama, Trump, and Biden 
Administrations by recognizing the harm of these surgeries. In 
2017, the Department released a statement 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.''.
(11) 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 . . . 
vaginas created that scarred and led to a lifetime of pain 
during intercourse . . . the psychological damage caused by 
[non-consensual] 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 [a different] 
gender.''.
(12) When the life of an infant born with variations in 
their physical sex characteristics is threatened and medical 
attention cannot be safely deferred, therapeutic treatment 
options should remain available to children, families, and 
medical professionals to ensure that the imminent risk to life 
is addressed. In such cases, where surgical intervention cannot 
be deferred and the infant lacks agency to advance the infant's 
own interests, clinical ethicists may be consulted or included 
in decision-making to serve as a proxy for the interests of the 
infant and to ensure that the infant's long-term well-being is 
a primary consideration in decision-making.
(13) 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. 4. 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 surgical procedures 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, unless the surgical procedure is to address an 
immediate risk to life:
``(A) Clitoroplasty, clitoral reduction, or 
clitoral recession, including corporal-sparing 
procedures.
``(B) Gonadectomy.
``(C) Vaginoplasty, urogenital sinus mobilization, 
or vaginal exteriorization.
``(D) Phallectomy, penectomy, or phalloplasty.
``(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) Surgical procedure to address an immediate 
risk to life.--The term `surgical procedure to address 
an immediate risk to life' means a surgical procedure--
``(i) to remove tissue that is malignant;
``(ii) to create an opening to allow urine 
or feces to exit the body where an opening is 
underdeveloped or not present;
``(iii) to reposition internal organs that 
formed outside of the body;
``(iv) that is required to treat 
complications of a previous surgery and cannot 
be delayed without increasing physical health 
risks to the patient; or
``(v) that is 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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