The Texas State Capitol from the top of the Dewitt C. Greer building. Photo by Stan A. Williams
By our count, at least 16 bills have been introduced this session to in one way or another prohibit gender transition or gender affirming care for minors. In general, these bills punish physicians and health care providers for providing certain treatments, prohibit insurers and public health plans from covering them, impose criminal and civil liability, mandate license revocation, and create long-tail causes of action against perpetrators—even lawsuits by the affected minor against the minor’s own parents in some cases.
As always in this space, our feelings on the issues involved in the provision of such care are neither here nor there. Our legitimate concern, however, is the potential impact of these proposals on the propriety of using the judicial system to enforce social policy, a citizen’s due process protections under the federal and Texas Constitutions, the employer-employee relationship, and, ultimately, the Texas business climate. Viewed from this perspective, most of these bills have troubling aspects that should be fully vetted and discussed before being passed into law.
Without singling out any bill in particular, and in no particular order, we see these concerns:
- Statutes of limitation. Some of the proposals significantly extend the statute of limitations for claims brought by a minor against health care providers and others, possibly for decades. The purposes of limitations periods are multifold, but they are rooted in due process of law. Allowing stale claims to be revived or brought many years after the event is likely to deprive a defendant of adequate discovery and, consequently, the ability to mount an effective defense. Even causes of action that have longer limitations periods, such as construction defect cases, also have statutes of repose that cut off claims at a reasonable time. These proposals extend limitations without repose, creating long-tail risk that cannot be insured and leaving defendants bare and unable to defend themselves. Perhaps that is the goal, but it is not characteristic of a constitutionally sound judicial system.
- No injury causes of action. Many of these proposals effectively hold health care providers and others strictly liable for a specified act without the necessity of proving injury or causation. At the same time, they impose very substantial statutory damages that are in the nature of a penalty, as well as liability for attorney’s fees and costs. When coupled with the extension of limitations, as discussed above, the due process implications become even more pronounced. In other words, the bills presume that the treatment itself is the injury, the treatment necessarily caused injury, and the damages flow automatically if the plaintiff simply proves up the treatment. No defense is possible, except perhaps contesting whether the alleged treatment actually occurred. This is not the way the civil justice system is supposed to work and a serious argument can be made that, in addition to the due process problems of holding a person liable for actual and punitive damages without a showing of intentional misconduct or gross negligence, these provisions violate the Open Courts provision of the Texas Constitution.
- Noneconomic damages. These bills often authorize the recovery of noneconomic damages for mental anguish. As we have stated many times in the past (and in amicus briefs), noneconomic damages are notoriously subjective and standards of review are almost non-existent. And while it is possible to recover mental anguish damages without manifestation of a physical injury (the bills do not require a physical injury), the existence of a physical injury is at least one or more objective basis upon which a factfinder can evaluate the question. Again, piling on damages without the usual predicate showing of injury or causation, at some point, has to cross the due process line.
- Employer compliance. Many of these bills have provisions that prohibit public and private health insurance plans from covering certain treatments. Texas has plenty of coverage mandates, but these bills go beyond that to make employers liable for “indirectly facilitating” proscribed treatments, whatever that may mean. Setting aside the issue of whether a certain proscribed treatment is actually for the “purpose” of gender transition or gender affirmation, itself a troublingly vague standard, the legislation makes it difficult if not impossible for an employer to provide coverage for any service or procedure for a minor that could in any way be linked to gender. To make matters more difficult, employers are not privy to the services or treatments sought by their employees and their dependents, nor should they be. These bills simply put employers in an impossible position, especially if they have operations in more than one state and provide the same benefits to employees everywhere. There is almost no way to comply.
- Civil and criminal enforcement. Generally speaking, most of these bills have some form of civil or criminal enforcement, or both. We will focus here on the civil enforcement aspect because it adds new levels of liability and penalties to the private cause of action against everybody and the disciplinary sanctions against providers. The nature of the problem is the same: one is guilty until proven guilty. That is the essence of strict liability, which is generally confined to product liability law for a good reason. The bills furthermore give the attorney general broad investigative power, which, when coupled with the strict liability aspect, means that any provider or business may be investigated pretty much when the attorney general feels like doing it. Without any standards of the kind we discussed above, the bills declare open season on Texas businesses and health care providers without even the most basic constitutional protections.
As we have noted previously, we are concerned primarily about the damage these bills will do to the civil justice system and the courts. It appears that we are going in the direction of stripping the defendant du jour, whether a doctor, parent, or business owner, of any reasonable opportunity to avail themselves of the due process protections that are owed to every citizen in this country. There are ways to achieve the policy goals of the proponents of abolishing gender transition or gender affirmation care, but sacrificing due process should not be one of them.
