S. 2357 — Introduced in Senate

II 118th CONGRESS 1st Session S. 2357 IN THE SENATE OF THE UNITED STATES July 18, 2023Mr. Vance introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend chapter 110 of title 18, United States Code, to prohibit gender-affirming care on minors, and for other purposes. 1. Short title This Act may be cited as the Protect Children’s Innocence Act. I Gender-affirming care on minors prohibited 101. Gender-affirming care on minors prohibited Chapter 110 of title 18, United States Code, is amended— (1) by adding at the end the following: 2260B. Gender-affirming care on minors (a) Definitions In this section: (1) Biological sex The term biological sex means the indication of male or female sex by reproductive potential or capacity, sex chromosomes, naturally occurring sex hormones, gonads, or internal or external genitalia present at birth. (2) Gender-affirming care (A) In general Except as provided in subparagraph (B), the term gender-affirming care means, with respect to an individual, any of the following: (i) Performing any surgery for the purpose of changing the body of the individual to correspond to a sex that differs from the individual's biological sex, including— (I) castration; (II) orchiectomy; (III) scrotoplasty; (IV) vasectomy; (V) hysterectomy; (VI) oophorectomy; (VII) ovariectomy; (VIII) metoidioplasty; (IX) penectomy; (X) phalloplasty; (XI) vaginoplasty; (XII) vaginectomy; (XIII) vulvoplasty; (XIV) reduction thyrochondroplasty; (XV) chondrolaryngoplasty; and (XVI) mastectomy. (ii) Any plastic surgery that feminizes or masculinizes the facial features of the individual for the purposes described in clause (i). (iii) Any placement of chest implants in the individual to create feminine breasts for the purposes described in clause (i). (iv) Any placement of fat or artificial implants in the gluteal region of the individual for the purposes described in clause (i). (v) Administering, supplying, prescribing, dispensing, distributing, or otherwise conveying to the individual medications for the purposes described in clause (i), including— (I) gonadotropin-releasing hormone (commonly known as GnRH) analogues or other puberty-blocking drugs to stop or delay normal puberty; (II) testosterone or other androgens to a biological female at doses that are supraphysiologic to the female sex; and (III) estrogen to a biological male at doses that are supraphysiologic to the male sex. (B) Exception Subparagraph (A) shall not apply to conduct with respect to the following individuals: (i) An individual with both ovarian and testicular tissue. (ii) An individual who does not have normal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action, as determined by a physician through genetic or biochemical testing. (iii) An individual experiencing infection, disease, injury, or disorder caused or exacerbated by previous gender transition procedures. (iv) An individual suffering from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the individual in imminent danger of death or impairment of a major bodily function unless a procedure described in that subparagraph is performed. (3) Minor The term minor means any individual under the age of 18 years. (b) Prohibition on performing gender-affirming care on minors (1) Offense It shall be unlawful, in any circumstance described in subsection (e), to knowingly perform any gender-affirming care on a minor. (2) Penalty Any person who violates paragraph (1) shall be fined under this title, imprisoned for not more than 12 years, or both. (c) Prohibition on prosecution of person on whom intervention is performed A person on whom gender-affirming care is performed may not be arrested or prosecuted for an offense under subsection (b). (d) Civil action A person on whom gender-affirming care is performed in violation of subsection (b) may bring a civil action in an appropriate district court of the United States for appropriate relief, including compensatory and punitive damages, against each person who performed the gender-affirming care. (e) Circumstances described The circumstances referred to in subsection (b) are that— (1) the defendant or victim traveled in interstate or foreign commerce, or traveled using a means, channel, facility, or instrumentality of interstate or foreign commerce, in furtherance of or in connection with the conduct described in that subsection; (2) the defendant used a means, channel, facility, or instrumentality of interstate or foreign commerce in furtherance of or in connection with the conduct described in that subsection; (3) any payment of any kind was made, directly or indirectly, in furtherance of or in connection with the conduct described in that subsection using any means, channel, facility, or instrumentality of interstate or foreign commerce or in or affecting interstate or foreign commerce; (4) the defendant transmitted in interstate or foreign commerce any communication relating to or in furtherance of the conduct described in that subsection— (A) using any means, channel, facility, or instrumentality of interstate or foreign commerce; or (B) in or affecting interstate or foreign commerce by any means or in any manner, including by computer, mail, wire, or electromagnetic transmission; (5) any instrument, item, substance, or other object that has traveled in interstate or foreign commerce was used to perform the conduct described in that subsection; (6) the conduct described in that subsection occurred in— (A) the special maritime and territorial jurisdiction of the United States; or (B) a territory or possession of the United States; or (7) the conduct described in that subsection otherwise occurred in or affected interstate or foreign commerce. (f) Rule of construction Nothing in this section shall be construed as prohibiting provision of the medical services described in subsection (a)(2)(A) to address legitimate health issues, such as any male or female reproductive cancers, apart from changing the body of an individual to correspond to a sex that differs from the individual's biological sex. ; and (2) in the table of sections, by adding at the end the following: 2260B. Gender-affirming care on minors. . II Prohibiting federally funded gender-affirming care 201. Prohibiting taxpayer-funded gender-affirming care Title 1, United States Code, is amended by adding at the end the following: 4 Prohibiting taxpayer-funded gender-affirming care 301. Prohibition on funding for gender-affirming care. 302. Prohibition on funding for health benefits plans that cover gender-affirming care. 303. Limitation on Federal facilities and employees, Federal land and territories, and Tribal territories. 304. Effect on separate coverage. 305. Effect on use of non-Federal funds for health coverage. 306. Application to complications arising from gender-affirming care. 307. Application to individuals born with medically verifiable disorder of sex development. 308. Gender-affirming care defined. 309. Effect of chapter. 301. Prohibition on funding for gender-affirming care No funds authorized or appropriated by Federal law, and none of the funds in any trust fund to which funds are authorized or appropriated by Federal law, including funds provided under titles XVIII, XIX, and XXI of the Social Security Act, shall be expended for any gender-affirming care. 302. Prohibition on funding for health benefits plans that cover gender-affirming care No funds authorized or appropriated by Federal law, and none of the funds in any trust fund to which funds are authorized or appropriated by Federal law, shall be expended for health benefits coverage that includes coverage of gender-affirming care. 303. Limitation on Federal facilities and employees, Federal land and territories, and Tribal territories Gender-affirming care may not be included in any health care service furnished by— (1) a health care facility owned or operated by the Federal Government; (2) a health care facility operated on Federal land, in a territory, or in a Tribal territory; or (3) any physician or other individual providing health care services within the scope of the physician’s or individual’s employment who is— (A) employed by the Federal Government; or (B) employed by a health care facility operated on Federal land, in a territory, or in a Tribal territory. 304. Effect on separate coverage Nothing in this chapter prohibits any individual, entity, or State or locality from purchasing separate coverage for gender-affirming care or health benefits coverage that includes gender-affirming care, on the condition that such coverage— (1) is paid for entirely using funds— (A) not authorized or appropriated by Federal law; or (B) not received from Federal programs, platforms, or infrastructure; (2) does not cover any practice that would be subject to penalty under section 2260B of title 18; and (3) is not purchased using matching funds required for a federally subsidized program, including a State’s or locality’s contribution of Medicaid matching funds. 305. Effect on use of non-Federal funds for health coverage Nothing in this chapter restricts the ability of any non-Federal health benefits coverage provider from offering coverage for gender-affirming care, or the ability of a State or locality to contract separately with such a provider for such coverage, on the condition that such coverage— (1) is paid for entirely using funds— (A) not authorized or appropriated by Federal law; or (B) not received from Federal programs, platforms, or infrastructure; (2) does not cover any practice that would be subject to penalty under section 2260B of title 18; and (3) is not purchased using matching funds required for a federally subsidized program, including a State’s or locality’s contribution of Medicaid matching funds. 306. Application to complications arising from gender-affirming care Nothing in this chapter applies to the treatment of any infection, injury, disease, or disorder that has been caused or exacerbated by the performance of a gender-affirming care, regardless of whether— (1) the gender-affirming care was performed in accordance with Federal or State law; or (2) funding for the gender-affirming care is permissible under section 307. 307. Application to individuals born with medically verifiable disorder of sex development The prohibitions and limitations described in sections 301, 302, and 303 shall not apply to conduct with respect to an individual described in section 2260B(a)(2)(B) of title 18. 308. Gender-affirming care defined For purposes of this chapter, the term gender-affirming care has the meaning given such term in section 2260B of title 18. 309. Effect of chapter Nothing in this chapter prohibits the provision of the medical services described in section 2260B(a)(2)(B) of title 18, to address any male or female reproductive cancers (other than medical services to change the body of an individual to correspond to a sex that differs from the individual’s biological sex). . 202. Amendment to table of chapters The table of chapters for title 1, United States Code, is amended by adding at the end the following: 4.Prohibiting taxpayer-funded gender-affirming care301 . III Application under the Affordable Care Act 301. Clarifying application of prohibition to premium credits and cost-sharing reductions under ACA (a) In general (1) Disallowance of refundable credit and cost-sharing reductions for coverage under qualified health plan which provides coverage for gender-affirming care (A) In general Subparagraph (A) of section 36B(c)(3) of the Internal Revenue Code of 1986 is amended by inserting before the period at the end the following: or any health plan that includes coverage for gender-affirming care (other than any gender-affirming care or treatment described in section 306 or 307 of title 1, United States Code). (B) Option to purchase or offer separate coverage or plan Paragraph (3) of section 36B(c) of such Code is amended by adding at the end the following new subparagraph: (C) Separate coverage or plan for gender-affirming care allowed (i) Option to purchase separate coverage or plan Nothing in subparagraph (A) shall be construed as prohibiting any individual from purchasing separate coverage for gender-affirming care described in such subparagraph, or a health plan that includes such gender-affirming care, so long as no credit is allowed under this section with respect to the premiums for such coverage or plan and such coverage or plan does not cover any practice that would be subject to penalty under section 2260B of title 18, United States Code. (ii) Option to offer coverage or plan Nothing in subparagraph (A) shall restrict any non-Federal health insurance issuer offering a health plan from offering separate coverage for gender-affirming care described in such subparagraph, or a plan that includes such gender-affirming care, so long as premiums for such separate coverage or plan are not paid for with any amount attributable to the credit allowed under this section (or the amount of any advance payment of the credit under section 1412 of the Patient Protection and Affordable Care Act) and such coverage or plan does not cover any practice that would be subject to penalty under section 2260B of title 18, United States Code. . (2) Disallowance of small employer health insurance expense credit for plan which includes coverage for gender-affirming care Subsection (h) of section 45R of the Internal Revenue Code of 1986 is amended— (A) by striking Any term and inserting the following: (1) In general Any term ; and (B) by adding at the end the following new paragraph: (2) Exclusion of health plans including coverage for gender-affirming care (A) In general The term qualified health plan does not include any health plan that includes coverage for gender-affirming care (other than any gender-affirming care or treatment described in section 306 or 307 of title 1, United States Code). (B) Separate coverage or plan for gender-affirming care allowed (i) Option to purchase separate coverage or plan Nothing in subparagraph (A) shall be construed as prohibiting any employer from purchasing for its employees separate coverage for gender-affirming care described in such subparagraph, or a health plan that includes such gender-affirming care, so long as no credit is allowed under this section with respect to the employer contributions for such coverage or plan and such coverage does not cover any practice that would be subject to penalty under section 2260B of title 18, United States Code. (ii) Option to offer coverage or plan Nothing in subparagraph (A) shall restrict any non-Federal health insurance issuer offering a health plan from offering separate coverage for gender-affirming care described in such subparagraph, or a plan that includes such gender-affirming care, so long as such separate coverage or plan is not paid for with any employer contribution eligible for the credit allowed under this section and such coverage or plan does not cover any practice that would be subject to penalty under section 2260B of title 18, United States Code. . (b) Application to multi-State plans Section 1334(a) of Public Law 111–148 (42 U.S.C. 18054(a)) is amended by adding at the end the following: (8) Coverage consistent with Federal policy regarding gender-affirming care In entering into contracts under this subsection, the Director shall ensure that no multi-State qualified health plan offered in an Exchange provides health benefits coverage for which the expenditure of Federal funds is prohibited under chapter 4 of title 1, United States Code. . (c) Effective date The amendments made by subsection (a) shall apply to taxable years ending after the date that is one year after the date of enactment of this Act, but only with respect to plan years beginning after such date, and the amendment made by subsection (b) shall apply to plan years beginning after such date. IV Additional Provisions 401. Prohibition on institutions of higher education and accrediting agencies or associations (a) Prohibition on institutions of higher education Section 487(a) of the Higher Education Act of 1965 (20 U.S.C. 1094(a)) is amended by adding at the end the following: (30) The institution will not offer instruction in gender-affirming care (as defined in section 2260B of title 18, United States Code). . (b) Prohibition on accrediting agencies or associations Section 496(a) of the Higher Education Act of 1965 (20 U.S.C. 1099b(a)) is amended— (1) by striking and at the end of paragraph (7); (2) by striking the period at the end of paragraph (8) and inserting ; and; and (3) by adding at the end the following: (9) such agency or association does not accredit any institution that offers instruction in gender-affirming care (as defined in section 2260B of title 18, United States Code). . 402. Immigration consequences with respect to providing gender-affirming care (a) Definition of gender-Affirming care Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following: (53) The term gender-affirming care shall have the meaning given such term in section 2260B of title 18, United States Code. . (b) Classes of aliens ineligible for visas or admission Section 212(a)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(1)(A)) is amended— (1) in clause (iii)(II), by striking or at the end; (2) in clause (iv), by striking the comma at the end and inserting , or; and (3) by inserting after clause (iv) the following: (v) who is determined to have performed gender-affirming care on a child that has not attained the age of 18 years old, . (c) Classes of deportable aliens Section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a)) is amended by adding at the end the following: (8) Gender-affirming care Any alien who has performed gender-affirming care on a child who has not attained the age of 18 years old is deportable. .