US Administration Ups the Ante for Gender-Affirming Care Providers With Legislative Proposal

The US Department of Justice has proposed legislation to the US Congress that would, if enacted, create a private right of action against healthcare professionals who provide gender-affirming care to children. The proposal follows through on a directive contained in an executive order issued in January 2025 and represents an increased level of legal risk to healthcare professionals and healthcare entities that are involved in providing this care.

As we have recently reported in an in-depth LawFlash, these issues are contentious and present risk management issues to hospitals, doctors, and pharmaceutical manufacturers. This legislative proposal will only heighten those risks. The proposal also increases federal-state and partisan divisions and risks placing affected parties in “no win” situations.

The proposed [1] Victims of Chemical or Surgical Mutilation Act (VCSMA) would prohibit healthcare professionals, hospitals, and clinics from participating in most medical and surgical treatments for children that “delay the onset or progression of normally timed puberty in an individual who does not identify as his or her sex.” [2] However, unlike other federal enforcement statutes, it does not provide any authority to any federal or state government or any criminal, civil, or administrative penalties.

Rather, it creates a private right of action for damages against any healthcare professional, hospital, or clinic that is proven to have participated in the conduct. Damages include but are not limited to compensatory (including all economic damages associated with “undoing, correcting, or ameliorating the alleged conduct”) as well as noneconomic damages for emotional distress and pain and suffering. Punitive damages may be available in some circumstances as may strict liability. [3] The proposal includes a 25-year statute of limitations for the child patient or their parents.

In a recent analysis published by Morgan Lewis, we addressed the risks to hospitals, doctors, and pharmaceutical manufacturers presented by the January executive order and the DOJ’s intention to “hold accountable those who mutilate [children] under the guise of care.” The analysis also discusses a complaint filed by 16 state attorneys general asserting that the administration’s actions, even before transmitting this proposal, violate the US Constitution and the federal Administrative Procedures Act. [4]

While the proposed legislation does recognize the limits on Congress’s authority by requiring a nexus to interstate commerce, [5] that is a broad term and appears to include the use of systems facilitating interstate payments. Moreover, a person who travels from a state where this care has been prohibited by law to one where it is lawful has necessarily traveled in interstate commerce in furtherance of treatment.

The 25-year statute of limitations coupled with an express prohibition on waiver of liability would appear to permit a child whose parents consented to these treatments to bring an action well into adulthood, thus creating lengthy tail liability.

This proposal does not change our advice or “key takeaways” from our earlier analysis, but does demonstrate that attention to the topic is increasing and that the administration is following through quite deliberately.

STAY INFORMED

Visit our US Administration Policies and Priorities resource center and subscribe to our mailing list for the latest on programming, guidance, and current legal and business developments.