S. 2907 — Chloe Cole Act

This section defines terms for purposes of the Act, including: (1) "chemical or surgical mutilation" as the use of puberty blockers, sex hormones, or surgical procedures intended to halt an individual's natural puberty or body development so it no longer corresponds to the individual's sex, excluding treatments for verifiable disorders of sexual development, infections or injuries from prior interventions, acute life-threatening conditions or congenital anomalies of major organ systems, and detransition treatment; (2) "child" as an individual under 18 years of age; (3) "detransition treatment" as any mental health treatment, medical intervention, or surgery that stops or reverses prior chemical or surgical mutilation or helps cope with its effects; (4) "health care professional" as a state-licensed physician or other person authorized to administer health care; (5) "mental health professional" as a state-licensed person authorized to diagnose and treat mental health conditions; (6) "participate," with respect to chemical or surgical mutilation, as directly engaging in its planning, authorization, prescription, administration, or performance (e.g., prescribing or administering puberty blockers or hormones to align appearance with an identity differing from sex, or performing related surgeries); and (7) "sex" as a person's immutable biological classification as male or female, determined by reproductive system function for producing ova (female) or sperm (male), regardless of congenital anomalies or disruptions.

This section prohibits health care professionals, hospitals, or clinics from participating in the chemical or surgical mutilation of a child if any of seven specified circumstances involving interstate or foreign commerce apply (i.e., interstate travel by the child or provider; use of interstate channels, facilities, or instrumentalities; interstate payments; interstate communications; use of interstate-traveled instruments, items, substances, or objects; occurrence in the District of Columbia, U.S. territories or possessions, or special maritime jurisdiction; or affects interstate commerce). Providers may commence treatments qualifying as exceptions under section 2(1)(B)(i)-(iv) only after determining, based on clear and convincing evidence, that such treatments qualify.

This section establishes a private right of action allowing an individual subjected as a child to chemical or surgical mutilation prohibited by section 3, or that individual's parents or legal guardians, to bring a civil suit for damages in U.S. district court against any participating health care professional, hospital, or clinic—regardless of whether the mutilation occurred before, on, or after the date of enactment. Available damages include (1) compensatory damages for economic losses associated with undoing or ameliorating mutilation effects, (2) non-economic damages for emotional distress and pain and suffering, and (3) punitive damages if proven by clear and convincing evidence of malicious, intentional, fraudulent, or reckless conduct. Post-enactment, participating entities are strictly liable upon proof by clear and convincing evidence, and they bear the burden of proving by clear and convincing evidence any affirmative defense based on exceptions in section 2(1)(B)(i)-(iv).

This section establishes rules of construction for the Act, including: (1) no private right of action based on counseling, referrals to mental health professionals, or discussions of treatment options (including upon reaching adulthood or outside circumstances described in section 3(b)) by health care or mental health professionals, provided such actions do not constitute participation in chemical or surgical mutilation of a child, as defined in section 2; (2) no waiver of liability for health care professionals under the Act; (3) resolution of ambiguities against any party that engaged in such participation; (4) limited deference, in cases of pre-enactment mutilation, to prevailing standards of care that contradict the Act's intent if the health care professional knew or should have known such standards were in serious scientific and medical dispute; and (5) no prohibition on health care or mental health professionals providing information on all treatment options, discussing risks and benefits, or expressing professional medical opinions, provided such actions do not constitute participation in chemical or surgical mutilation.

This section establishes a statute of limitations for actions under section 4, permitting such actions to be brought within 25 years from the date of the eighteenth birthday of an individual subjected to chemical or surgical mutilation as a child or within 4 years from the time the cost of a detransition treatment is incurred, whichever date is later.

This section provides a severability clause stating that if any provision of the Act, or its application to any person or circumstance, is held unconstitutional, the remainder of the Act and the application of that provision to other persons or circumstances remains unaffected.