Wisconsin bill would allow lawsuits against doctors that provide gender-affirming care

Wisconsin state legislators have introduced a bill that would allow civil lawsuits against health care practitioners that provide gender-affirming care to youth.

Senate Bill 405 would create "a civil cause of action against a health care provider who performs a gender transition procedure ... on an individual who is under 18 years of age and who is injured, including any physical, psychological, emotional, or physiological injury, by the gender transition procedure or related treatment or the aftereffects of the gender transition procedure or related treatment." Patients would be allowed to sue their providers until they reach age 33.

Dozens of community members spoke against the bill at the Senate Committee on Health hearing Wednesday, including Abigail Swetz, Executive Director of Fair Wisconsin. The organization also collected and submitted thousands of pages of written testimony from people across the state speaking to why the bill would be harmful for transgender youth.

"It is incredibly important that we listen to trans people when we’re talking about their medically necessary health care," Swetz said, in testimony shared with The Advocate. "It is also incredibly important that we stop debating their humanity, and that we stop using anyone’s individual experience to score political points.I am immeasurably lucky to have incredible trans people in my life, many of whom I have known since they were children. It is difficult to see this legislature perpetually putting them in a position of having to defend their existence, the validity of their own identities, the necessity of their own health care, and the value of their own lives."

Related: What is gender-affirming care, who uses it, and do they regret it?

The bill would allow exceptions for health care providers so long as they document that "the minor’s perceived gender or perceived sex is invariably inconsistent with the minor’s biological sex throughout a two-year period," and if "at least two health care providers, including at least one mental health professional, certifies in writing that the gender transition procedure is the only way to treat the mental health concern."

Gender-affirming care for prepubescent youth primarily focuses on socially transitioning — changing their hair, clothing, or potentially going by a new name and pronouns. There is no evidence of surgeries being performed on trans youth under the age of 12, according to a recent study in JAMA, and only 2.1 out of every 100,000 trans youth ages 15 to 17 received surgery — the vast majority being chest surgeries.

Gender-affirming surgeries have one of the lowest regret rates of any major surgery. Only 0.3 percent of transgender men and 0.6 percent of transgender women said they regret their gender-affirming surgery, according to a 2023 study from the National Library of Medicine.

The American Medical Association, the American Psychiatric Association, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the World Medical Association, and the World Health Organization all agree that gender-affirming care is evidence-based and medically necessary not just for adults, but minors as well.

"Gender-affirming care for transgender youth is medically necessary care, just like the kids who receive it — and all kids are necessary," Swetz continued. "It is age-appropriate, just as it is appropriate to believe someone at any age when they tell you they know who they are and how they want to live, a perspective backed by rigorous scientific evidence. It is individualized, just like the young people who receive it are, themselves, unique individuals. And it is high-quality, just like the bright future this state has ahead of us when all our children thrive."