The Tennessee General Assembly is concerned about minors receiving gender-affirming medical care, even with the consent of their parents. Although the legislature’s views are contradicted by the American Medical Association,¹ the American Psychiatric Association,² and the American Academy of Pediatrics,³ this was a front-burner issue for this session of the General Assembly. This is best evidenced by the fact that proposed legislation on the subject was designated as “Bill No. 1” by both the House and Senate and became Public Chapter 1 after passage in both houses and signature by Gov. Lee.⁴

Rarely has the General Assembly been so aggressive in its findings in support of new legislation. The Legislature found that “health care providers in this state have sought to perform such [gender affirming] surgeries on minors because of the financial incentive associated with the surgeries, not necessarily because the surgeries are in a minor’s best interest.”⁵ It found that “many of the same pharmaceutical companies that contributed to the opioid epidemic have sought to profit from the administration of drugs to or use of devices on minors for such purposes and have paid consulting fees to physicians who then advocate for administration of drugs or use of devices for such purposes.”⁶ And, indeed, in what may be a first for the modern General Assembly, it even cited research from Sweden in support of the need for legislation on this issue.⁷

This is a column about tort law and is hardly the place to discuss the wisdom of the government injecting itself into the health care decision-making process between doctors, minor patients and their parents. Instead, let us explore the principal tool used by the General Assembly to enforce the prohibition of gender-affirming care — the tort system.

Section 103 of the new Act prohibits health care providers from providing (or offering to provide) gender-affirming care to minors if the care is “for the purpose of (A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or (B) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”⁸ Minors and their parents cannot consent to such care.⁹ It is not unlawful for a person to perform or administer the medical procedure to “treat a minor’s congenital defect, precocious puberty, disease or physical injury … ”¹⁰ The word “disease” does not include “gender dysphoria, gender identity disorder, gender incongruence or any mental condition, disorder, disability or abnormality.”¹¹

In addition, Section 104 provides “persons” may not “knowingly provide a hormone or puberty blocker by any means to a minor if the provision of the hormone or puberty blocker” if the use of the medication is not in compliance with the Act.¹² Note that this provision applies not just to health care providers but to “persons.” Presumably, a parent, family member or friend of the minor violates the new law if he or she provides androgen, estrogen or “any drug or device that suppresses the production of hormones in a minor’s body to stop, delay or suppress pubertal development.”¹³

Health care providers or other persons who violate the new Public Act are not subject to criminal prosecution. Instead, the Legislature chose to enforce the law through the tort system. Section 105 creates private rights of action for violations of section 103 or 104. The right is in favor of the minor and parent of a minor (unless the parent consented to the violation, in which event only the minor has a claim).¹⁴

A personal injury claim arises for a violation of either Section 103 or 104.¹⁵ Note that the claim may be filed even if the standard of care was followed by the health care provider — it is the giving of care, not whether the care complied with professional standards, that is unlawful.

A wrongful death of the minor arises if the death “is the result of the physical or emotional harm inflicted upon the minor by the violation” of Section 103.¹⁶ Presumably, this later provision is intended to allow a wrongful death claim to be brought in the event the minor patient dies by suicide because of the physical or emotional harm arising from the treatment banned by Section 103, but it also gives rise to a claim if the treatment itself caused death even if the treatment otherwise complied with the standard of care.¹⁷

The damages that may be awarded for violations of Sections 103 and 104 equal the most generous of all tort remedies provided by statute and certainly more than that provided by the common law: “compensatory damages, punitive damages and reasonable attorney’s fees, court costs and expenses.”¹⁸   

The statute of limitations applicable to such claims is the most pro-plaintiff limitations period in all of Tennessee tort law: (1) within 30 years from the date the minor reaches 18 years of age; or (2) within 10 years of the minor’s death if the minor dies.¹⁹ Essentially, the “tail” for personal injury claims for a violation of Section 103 or 104 is until the minor patient reaches age 48 and, for wrongful death, 10 years after the minor patient’s death. It appears that the statute of limitations for a personal injury case brought by the parents is linked to the age of the minor, not the traditional one-year-from-date-of-injury limitations period. There is no statute of repose included in the legislation.²⁰

As indicated above, others will debate the wisdom of the public policy reflected in Sections 103 and 104.²¹  But there is some comfort in knowing that the Legislature had enough confidence in the tort system that it created private causes of action to enforce this new law. |||

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville. Fortunately, neither he nor his three children have struggled with gender identity issues, but he knows people who have. It is hell.

NOTES

1. “AMA reinforces opposition to restrictions on transgender medical care.” American Medical Association. https://bit.ly/AMA_TransMedCare (last visited April 3, 2023).
2. “Position Statement on Treatment of Transgender (Trans) and Gender Diverse Youth.” American Psychiatric Association. https://bit.ly/APA_TransYouthStatement (last visited April 3, 2023).
3. “Statement from the American Academy of Pediatrics and the Oklahoma Chapter of the American Academy of Pediatrics on Gender Affirming Care.” American Academy of Pediatrics (Sept. 28, 2022). https://bit.ly/AAP_GenderAffirmCare.
4. The effective date of the legislation is July 1, 2023. 2023 Tenn. Pub. Acts 1, Sec. 5. The legislation addresses those currently receiving care in Tenn. Code Ann. § 68-33-103(b)(1)(B), (3) and (4).
5. Tenn. Code Ann. § 68-33-101(j).
6. Tenn. Code Ann. § 68-33-101(i).
7. Tenn. Code Ann. § 68-33-101(e).
8. Tenn. Code Ann. § 68-33-103.
9.Tenn. Code Ann. § 68-33-103(c)(2).
10. Tenn. Code Ann. § 68-33-103 (b)(1)(A).
11. Tenn. Code Ann. § 68-33-103 (b)(2). Treatment for congenital defect, precocious puberty, disease or physical injury must be appropriately documented in the patient’s chart. Tenn. Code Ann. § 68-33-101(b)(2).
12. Tenn. Code Ann. § 68-33-104. The drugs may be distributed if done “in compliance with this chapter.” So, the drugs can be used to treat a minor’s congenital defect, precocious puberty, disease or physical injury. Tenn. Code Ann. § 68-33-103 (b)(1)(A).
13. The quoted text is the definition of “puberty blocker” in the legislation. Tenn. Code Ann. § 68-33-102(8).
14. Tenn. Code Ann. § 68-33-105 (a)(2) and (b)(2).
15. Tenn. Code Ann. § 68-33-105 (a).
16.Tenn. Code Ann. § 68-33-105 (b). Note that no claim for wrongful death can be brought for a violation of Section 104.
17. As indicated above, the wrongful death claim could not be brought by the decedent’s parents if they gave consent to the claim. Tenn. Code Ann. § 68-33-105 (b)(2). The law is silent on what would happen if one parent gave consent to the treatment, and another did not. Nor does the legislation address the issue of how any damages would be distributed between the parents if the parent who did not give consent was able to successfully bring a wrongful death lawsuit for the violation of Section 103. Under the common law, and assuming the now deceased patient was not married and had no children at the time of death, each parent would be able to share equally in the wrongful death proceeds.
18. Tenn. Code Ann. § 68-33-105 (a)(1). Compensatory damages in personal injury cases are further defined in subsection (d). There is no special damages provision for wrongful death claims. Presumably, the provisions of Tenn. Code Ann. § 20-5-106 (and the case law interpreting that section) apply to such cases. Only the Tennessee Drug Dealer Liability Act has such pro-plaintiff damages’ provisions. Tenn. Code Ann. § 29-38-101 et seq.
19. Tenn. Code Ann. § 68-33-105 (e).
20. The Attorney General has the right to bring a claim for violations of the Act. Tenn. Code Ann. § 68-33-106. Violations of Section 103 are also subject to investigation by the health care provider’s regulatory board. Tenn. Code Ann. § 68-33-107. Finally, the legislation does not apply to counselors and social workers giving care to these minors. Tenn. Code Ann. § 68-33-108.
21. On April 26, 2023, the Department of Justice intervened in a federal court action previously filed by several Tennessee residents challenging the constitutionality of this legislation.  The case is L.W., by and through her parents and next friends, Samantha Williams and Brian Williams v. Skrmetti, Case No. 3:23-cv-00376 (M.D. Tenn). The plaintiffs allege that the legislation violates the Equal Protection Clause of the Fourth Amendment to the United States Constitution. The complaint may be viewed at www.justice.gov/opa/press-release/file/1581636/download.