October 5, 2026
Mrs. Miller of Illinois (for herself, Mr. Brecheen, Mrs. Biggs of South Carolina, Mr. Moore of Alabama, Mr. Fine, Mr. Rose, Mr. Alford, Mr. McCormick, Mr. Aderholt, Mr. Stutzman, Mrs. Houchin, Mrs. Harshbarger, Mr. Harris of North Carolina, and Mr. Ogles) introduced the following bill; which was referred to the Committee on Education and Workforce, and in addition to the Committees on the Judiciary, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To prevent the removal of children for sex-rejecting interventions.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1. Short title; table of contents
(a) Short title
This Act may be cited as the Yaeli Martinez Child Protection Act
.
(b) Table of contents
The table of contents for this Act is as follows:
Sec. 2. Findings
Congress finds as follows:
(1)
Parents have the fundamental right under the Constitution of the United States to direct the care, upbringing, education, and welfare of their children, including raising, treating, caring for, and referring to a child in a manner consistent with the child’s sex.
(2)
Parents have the fundamental right to make health care decisions for the purpose of protecting their child’s bodily integrity, development, and emotional and mental health.
(3)
Parents have a right under the First Amendment to the Constitution of the United States to direct the religious upbringing of their children, including to inculcate the belief that all humans are created male or female and to raise their child as the child's sex in accordance with their religious beliefs.
(4)
No child should be removed from his or her family by the State, or denied foster or adoptive placement, for the purpose of subjecting the child to social, medical, or surgical sex-rejecting interventions by the State.
(5)
Raising a child according to his or her sex is not abuse.
(6)
Congress and the Supreme Court have long recognized that parents possess the fundamental right to raise their children in accordance with their beliefs, including through Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Quilloin v. Walcott, 434 U.S. 246 (1978), Parham v. J.R., 442 U.S. 584 (1979), Troxel v. Granville, 530 U.S. 57 (2000), and Mahmoud v. Taylor, 606 U.S. 522 (2025). The Supreme Court, in Troxel v. Granville, 530 U.S. 57 (2000), held that the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court
.
(7)
The right of parents to direct the upbringing and care of their children, including the right to make medical decisions on behalf of their children, is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, including through Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Parham v. J.R., 442 U.S. 584 (1979), and Troxel v. Granville, 530 U.S. 57 (2000).
(8)
The Supreme Court has recognized that these constitutional protections rest on the presumption that parents love their children and possess what a child lacks in maturity, experience, and capacity for judgment. The Supreme Court, in Parham v. J.R., 442 U.S. 584 (1979), affirmed that parents have always been presumed to act in the best interests of their children in making medical decisions
.
(9)
The Supreme Court has stated, in Quilloin v. Walcott, 434 U.S. 246 (1978), that, absent a clear and convincing finding of unfitness of parental abuse, neglect, or abandonment, the State may not lawfully intervene in the parent-child relationship. The Supreme Court has held that—
(A)
the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a
(Troxel v. Granville, 530 U.S. 57 (2000)); andbetter
decision could be made
(B)
[s]imply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state
(Parham v. J.R., 442 U.S. 584 (1979)).
(10)
A parent’s decision to affirm a child’s sex and protect him or her from the harms of sex-rejecting interventions is an exercise of fundamental parental rights. Raising a child according to his or her sex is not abuse, neglect, or maltreatment.
(11)
The Supreme Court has recognized in United States v. Skrmetti, 605 U.S. 495 (2025) that sex-rejecting interventions are not settled science, that the gender distress of a child is not immutable, and that the state may reasonably protect a child from the harms of sex-rejecting interventions. Likewise, parents have the right to make a reasonable choice in the best interest of their child, to preserve for that child a future free from these harms.
(12)
The Supreme Court has recognized in Mahmoud v. Taylor, 606 U.S. 522 (2025), the rights of parents to direct the religious upbringing of their children and that those rights are violated by government policies that substantially interfere with the religious development of children, including where promotion of gender ideology would impose a substantial burden on their religious beliefs.
(13)
And yet, parents across the United States have suffered grievous interference with their constitutional rights. State child protection agencies and courts have intervened forcefully to remove children from fit parents and deny placement of children with foster and adoptive parents simply because parents refuse to affirm a child’s rejection of his or her sex, or consent to social, medical or surgical sex-rejecting interventions.
(14)
State and Federal policies that require parental affirmation
of a child’s rejection of his or her sex are at odds with the best available science, which recognizes the evidence for sex-rejecting interventions is weak while the risks of physical and psychological harm are high. This unfavorable risk-benefit ratio has been clearly established in the 2025 report of the Department of Health and Human Services, titled Treatment for Pediatric Gender Dysphoria: Review of Evidence and Best Practices
, and through multiple systematic reviews conducted in the United Kingdom, Sweden, Finland, and other countries. Risks include cancer, loss of bone density, impaired cognitive development, adverse psychiatric events, loss of sexual function, and infertility and sterility.
(15)
The scientific literature shows that, in most children, gender dysphoria resolves by adulthood if the child is not medicalized or treated as the opposite sex. Affirmation of a child’s sex is consistent with both long-term health outcomes and the child’s natural developmental trajectory.
(16)
Federal funds should not be used to mandate, promote, or implement protocols treating sex-rejecting interventions as evidence-based, safe, or in the best interests of children.
(17)
Despite the lack of evidence for sex-rejecting interventions, for many years, State child welfare systems have trained personnel, from social workers to judges, to treat as unsafe or abusive parents who decline to consent to these interventions for their child.
(18)
This training has resulted in States removing children from loving families and denying the placement of children with prospective foster and adoptive parents, on the sole or primary basis that they affirm the child’s sex.
(19)
Removal from fit parents is contrary to the best interests of children, creates trauma for the child, damages familial bonds, and exposes the child to well-documented risks in state custody. Children have suffered great harm and even have died after being removed from loving families by the state for sex-rejecting interventions.
(20)
Where States have banned placement with foster and adoptive parents on the grounds of their scientific or religious convictions about sexuality, thousands of safe and welcoming homes have been lost to the foster system, further endangering children in desperate need.
(21)
Children in foster care and State residential settings are among the most vulnerable populations in the Nation; many have experienced prior abuse or trauma. Sex-separated facilities provide an essential safeguard for these children’s safety and well-being, and yet many State foster facilities now house minor females with males.
(22)
Many States have passed laws or enacted policies arrogating custody to themselves if a child runs to or is taken by an adult to the State for sex-rejecting interventions in gross disregard of lawful custody orders and parental rights in another State.
(23)
These measures amount to State-sanctioned kidnapping and directly conflict with the Full Faith and Credit Clause and the Supremacy Clause of the Constitution of the United States and the amendments made by the Parental Kidnapping Prevention Act of 1980 (Public Law 96–611; 94 Stat. 3568).
(24)
State policies offering free sex-rejecting interventions to children have enticed many children to run away from fit and loving parents who seek to protect them. Nonprofit entities, including State and Federal-funded entities, have encouraged and aided children in running away to avoid the lawful authority and care of their parents.
(25)
Federal funds provided under the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.) and subtitles B and E of title IV of the Social Security Act (42 U.S.C. 601 et seq.) have been used, directly or indirectly, to fund investigations, removals, trainings, and programs that treat parental affirmation of a child’s sex as evidence of child abuse, neglect, emotional abuse, or parental unfitness or incapacity.
(26)
Such uses of Federal funds are inconsistent with Federal law, interstate compacts on juvenile runaways, multi-State laws governing court jurisdiction over child custody matters, the constitutional rights of parents, and the best interests of children.
(27)
The Federal child welfare system is premised on the principle that child removal from parents is an extreme measure of last resort, to be employed only when the child faces a genuine risk of abuse or neglect that cannot be remediated through less drastic means. Employing that system to remove children from parents who are exercising their fundamental constitutional right to raise their children in a manner consistent with their sex distorts the purpose of the system, causes serious harm to families, and undermines public confidence in child welfare institutions.
(28)
Parents and children have suffered unwarranted but irreparable harm when their own or another State has wrongfully asserted authority over the child in order to provide sex-rejecting interventions against the parent’s will.
(29)
Existing State remedies and administrative processes have failed to provide timely or effective relief for violations of fundamental parental rights by public officials or private entities exercising State-derived authority. Child welfare systems and courts have compounded these violations by drawing out proceedings past the age of majority, rendering cases moot and injustice permanent.
(30)
Congress must act to prevent the ongoing misuse of public funds, harm to children in State care, and destruction of families by the ideological weaponization child welfare systems. Clear national standards for the use of Federal child welfare funds, public accountability, and the establishment of a clear cause of action against State child welfare services and their employees and contractors are necessary to deter harm to children and violations of parental rights and to ensure meaningful remedies.
Sec. 3. Intent; authority
(a) Intent
It is the intent of Congress—
(1)
to reaffirm and protect the fundamental right of parents to direct the care, upbringing, education, and welfare of their children, including the right to raise, care for, treat, and refer to them in a manner consistent with the child’s sex;
(2)
to stop the weaponization of the child welfare system against parents who affirm their child’s sex or decline to consent to sex-rejecting interventions;
(3)
to deter violations of parental rights by State actors, nonprofit entities or other entities and persons exercising State-delegated authority over child custody, placement, or care;
(4)
to protect children in foster care, residential placements, and other out-of-home settings from being subjected to sex-rejecting interventions or endangered by failure to provide sex-separated sleeping, toileting, bathing, and other facilities in which a child may be in a state of undress;
(5)
to provide clear notice and training of constitutional obligations within child welfare systems;
(6)
to ensure that Federal funds are not used by States or by private State-designated or State-funded entities to violate the fundamental rights of parents or to enforce or further the provision of sex-rejecting interventions to minors;
(7)
to ensure that professional training, clinical protocols, and administrative guidance funded with Federal monies do not characterize parental affirmation of a child’s sex as child abuse, neglect, emotional abuse, or evidence of parental unfitness or incapacity;
(8)
to ensure that Federal funds are spent in accordance with evidence-based practices that support child safety, family preservation, and child well-being, and not on programs, trainings, or protocols that promote sex-rejecting interventions for children or that treat parental affirmation of a child’s sex as harmful to the child;
(9)
to ensure that children in State care are housed on the basis of their immutable sex;
(10)
to provide parents, legal guardians, caregivers, and children with access to meaningful and timely judicial relief when rights recognized and established by this Act, including the amendments made by this Act, are infringed through the express provision of a right of action;
(11)
to affirm that referring to the child by pronouns or titles consistent with the child’s sex, declining to consent to puberty-blocking drugs or cross-sex hormones, and declining to facilitate social, medical, or surgical sex-rejecting interventions do not constitute child abuse, neglect, emotional abuse, or maltreatment under Federal law; and
(12)
to preserve the integrity of interstate custody proceedings and prohibit courts of another State from assuming jurisdiction over child custody or visitation on the basis of a parent’s or child’s desire to obtain sex-rejecting interventions.
(b) Authority
This Act is enacted pursuant to the following authorities of Congress:
(1)
Section 5 of the Fourteenth Amendment to the Constitution of the United States, to enforce the guarantees of due process and equal protection for fundamental rights, specifically the fundamental parental right to custody and care of their child and to direct the upbringing, care, and control of their child.
(2)
The Spending Clause under section 8 of article I of the Constitution of the United States, by which Congress may condition the receipt of Federal funds on States’ agreement to comply with specific requirements related to the purposes of the funded programs (South Dakota v. Dole, 483 U.S. 203 (1987)). The conditions established by this Act, including the amendments made by this Act relate to the Federal interest in child welfare, child safety, family preservation, and the protection of parental rights.
(3)
The Full Faith and Credit Clause of section 1 of article IV of the Constitution of the United States, which grants Congress the power to prescribe the manner in which full faith and credit shall be given to the public acts, records, and judicial proceedings of each State.
(4)
The Commerce Clause of section 8 of article I of the Constitution of the United States, to the extent that the activities regulated substantially affect interstate commerce, including the interstate movement of children across State lines in the context of custody proceedings, foster care placements, and the administration of federally funded child welfare programs.
Sec. 4. Rules of Construction
(a) In general
This Act shall be construed—
(1)
broadly, with respect to the protection of constitutional parental rights; and
(2)
narrowly, with respect to any asserted justification for government interference with constitutional parental rights.
(b) Effect on other laws
Nothing in this Act shall—
(1)
limit the authority of child protective services agencies to investigate or respond to genuine reports of physical abuse, sexual abuse, or neglect of children; or
(2)
preempt any State law that provides greater protection to parents, legal guardians, or children than the rights established by this Act, including the amendments made by this Act.
(c) Construction of terms relating to child welfare and affirmation of a child's sex
For purposes of this Act, including the amendments made by this Act, the terms child abuse, emotional abuse, neglect, maltreatment, mistreatment, parental unfitness or incapacity, and abandonment shall not be construed to include affirming a child’s sex, nor shall affirming a child’s sex be construed as contrary to the best interest of the child, or as contrary to a child's safety, health, well-being, or welfare.
Sec. 5. Severability
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be invalid or unenforceable by any court of competent jurisdiction, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any other person or circumstance shall not be affected thereby.
Title I Amendments to the Child Abuse Prevention and Treatment Act
Sec. 101. Grants to States for child abuse or neglect prevention and treatment programs
Section 106 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5106a) is amended—
(1)
in subsection (b)—
(A)
in paragraph (2)—
(i)
in subparagraph (B)—
(I)
in clause (vii), by inserting , except to the extent that such report relates to a claim or suspicion of child abuse based on a parent or guardian affirming a child's sex
before the semicolon at the end;
(II)
in clause (xxiv), by striking ; and
and inserting a semicolon; and
(III)
by adding at the end the following:
(xxvi)
provisions and procedures for—
(I)
protecting and promoting children's right to be free from sex-rejecting interventions; and
(II)
protecting children from the use, without express parental consent, of pronouns or titles that do not correspond to the child’s sex;
(xxvii)
provisions and procedures for training child protective service workers, guardians ad litem, minor’s counsel, court appointed special advocates, judges, and other individuals providing services to children and families on—
(I)
the medical, psychological, and developmental harms of sex-rejecting interventions to children and the harms of using pronouns or titles that do not correspond to a child’s sex;
(II)
the right of a parent or legal guardian to affirm a child’s sex and of a parent, legal guardian, caregiver, foster parent, or prospective foster or adoptive parent to be free from discrimination or adverse State actions for affirming a child’s sex;
(III)
the principle that affirmation of a child's sex by a parent, legal guardian, caregiver, foster parent, or prospective foster or adoptive parent is not child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child's best interest, contrary to the child's health, safety, or welfare, or an indication of parental unfitness or incapacity; and
(IV)
the principle that affirmation of a child’s sex is consistent with the child’s best interests, health, safety, and welfare; and
(xxviii)
provisions and procedures requiring any covered entity described in section 111(a)(5)(A) to have in effect policies and procedures that protect and promote the right of a parent, legal guardian, or caregiver to be free from any adverse State action.;
(ii)
in subparagraph (F), by striking ; and
and inserting a semicolon;
(iii)
in subparagraph (G), by striking the period and inserting a semicolon; and
(iv)
by adding at the end the following:
(H)
an assurance in the form of a certification by the governor of the State that the programs, projects, or trainings conducted or funded under this title do not violate the limitations set forth in section 115; and
(I)
an assurance in the form of a certification by the governor of the State that the programs, projects, or trainings conducted under this subchapter comply with clauses (xxvi) through (xxviii) of subparagraph (B).; and
(B)
in paragraph (3)—
(i)
by striking such a disclosure where a court orders
and inserting “such a disclosure where—
(A)
a court orders;
(ii)
by striking the period and inserting a semicolon; and
(iii)
by adding at the end the following:
(B)
a report includes an allegation that the child is being affirmed as his or her sex; or
(C)
the child has expressed a desire to be treated in a manner that does not correspond to his or her sex or has requested sex-rejecting interventions.;
(2)
in subsection (c)(4)(B)(i)(I), by inserting , except as requested by the Secretary
before the semicolon;
(3)
in subsection (d), by adding at the end the following:
(19)
Of the number of children described in paragraph (1), the number who identify in a manner that does not correspond to their sex and—
(A)
who were reported to the State to have run away from home or eloped from a placement;
(B)
who have been given a placement outside of the home;
(C)
who were removed from parent, legal guardian, or caregiver; or
(D)
whose parents had their parental rights terminated.; and
(4)
by adding at the end the following:
(g) Scope of application
For purposes of clauses (xxvi) through (xxviii) of subsection (b)(2)(B), if any covered entity described in section 111(a)(5)(A) receives funds under this title, directly or as a recipient of a subgrant, the provisions and procedures described in such clauses shall apply to all of the operations, divisions, facilities, or programs of that covered entity, regardless of whether the specific operation, division, facility, or program received such funds.
Sec. 102. Restrictions on uses of funds; protection of parental rights
Title I of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.) is amended by adding at the end the following:
115. Restrictions on uses of funds; protection of parental rights
(a) In general
In administering, enforcing, or awarding funds under this title, the Secretary shall not treat affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, or prospective foster or adoptive parent as child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to a child’s health, safety, or welfare, or an indication of parental unfitness or incapacity.
(b) Condition on receipt of funds; rights protected
As a condition of receiving funds under this title, including any grants, subgrants, or other allocations, a covered entity shall protect the following rights and shall not discriminate or take an adverse State action against an individual because such individual exercises, has exercised, or intends to exercise any such right:
(1)
A parent or legal guardian has the right to affirm a child's sex, including the right for the child not to be subjected by any covered entity, even if the child is in the legal or physical custody of the covered entity, to—
(A)
the provision, facilitation, funding, authorization, or permission of any sex-rejecting intervention for the child;
(B)
the use of pronouns or titles that do not correspond to the child's sex, without the express written consent of the child's parent or legal guardian; or
(C)
if the child is 4 years of age or older, being permitted or assigned the use of sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other area in which the child would be in a state of undress, with individuals of the opposite sex.
(2)
A parent or legal guardian has the right not to be required to consent to the child being subjected to any of the actions described in subparagraph (A), (B), or (C) of paragraph (1) as a condition of custody or return of the child, or visitation, communication, or reunification with the child.
(3)
A parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent has a right to be free from discrimination or adverse State action for affirming or intending to affirm a child’s sex.
(4)
A child has the right not to be subjected by any covered entity, even if the child is in the legal or physical custody of the covered entity, to any sex-rejecting intervention.
(c) Prohibited uses of funds
The Secretary shall ensure that no funds provided under this title, including any grants, subgrants, and other allocations to States, Indian Tribes or Tribal organizations, and public and private agencies and organizations, are used for any of the following:
(1)
Conducting, supporting or promoting any program, project, curriculum, guidance, protocol, or training that supports or promotes a principle that—
(A)
sex-rejecting interventions are in the best interest of the child or consistent with the health, safety, and welfare of the child;
(B)
affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, or prospective foster or adoptive parent is child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to a child's best interests, contrary to a child's health, safety, or welfare, or an indication of parental unfitness or incapacity; or
(C)
a child’s expression of psychological distress, including a statement or report of suicidal ideation, related to the affirmation of a child’s sex is grounds for removal of the child from the home, intervention by a child welfare agency, or any other adverse State action.
(2)
Conducting, supporting, or promoting any adverse State action.
(3)
Providing, facilitating, funding, authorizing, or permitting any sex-rejecting intervention for a child, or referring a child for a sex-rejecting intervention.
(4)
Removing children from parents, legal guardians, or caregivers and placing children into any home, institution, or other placement setting that facilitates or provides sex-rejecting interventions, or without parental consent, uses pronouns or titles that do not correspond to the child’s sex.
(d) Obligations on recipients and subrecipients
A State, Indian Tribe or Tribal organization, or public or private agency or organization receiving an award under this title, or a recipient of a subgrant of such an award, may not use such award for programs, trainings, or other activities that violate any of the restrictions on uses of funds set forth in subsection (b) or (c).
(e) Withholding and recoupment for noncompliance
(1) Authority to withhold and recover funds
(A) In general
If the Secretary determines that any State, Indian Tribe or Tribal organization, or public or private agency or organization, including any recipient of a subgrant, has violated the conditions under subsection (b) or used funds in violation of subsection (c), the Secretary shall disallow the costs associated with such violation, withhold funds as described in subparagraph (B) or recover funds as described in subparagraph (C), as applicable, and impose the applicable penalty amount determined under paragraph (3).
(B) Withholding of funds
In the case of a violation described in subparagraph (A), the Secretary shall withhold from the recipient any future payments or funding tranches not yet disbursed until the Secretary certifies that the violation has been remediated and that the recipient has adopted policies and procedures sufficient to prevent recurrence.
(C) Recovery of funds
In the case of a violation described in subparagraph (A), the Secretary shall recover grant funds already disbursed to the recipient, and such disbursed funds shall constitute a debt to the Federal Government as of the date of the Secretary's written determination of noncompliance, collectible in accordance with parts 200 and 300 of title 2, Code of Federal Regulations (or any successor regulations), including through administrative offset against any other Federal payments owed to the entity under this title or any other Federal program administered by the Department of Health and Human Services.
(D) Basis for determination
In making a determination under subparagraph (A), a violation described in any of clauses (xxvi) through (xxviii) of section 106(b)(2)(B) includes a State's failure to—
(i)
include in its State plan under section 106(b), the certification and assurance required under such clauses; or
(ii)
adequately enforce, or maintain in effect, programs certified under any such clause.
(2) Subgrants
The direct recipient of an award under this title shall be responsible for ensuring that recipients of subgrants awarded by such direct recipient complies with this section, and any violation by a recipient of such a subgrant shall be attributed to the direct recipient of the award from the Secretary.
(3) Penalties
(A) In general
The penalty amount applicable to a recipient of a grant under this title awarded by the Secretary and who has violated subsection (b) or (c) shall be as follows:
(i)
For the first finding of such a violation by the recipient within a grant period, 5 percent of the total funds provided to the recipient under this title for the applicable grant period.
(ii)
For the second finding of such a violation by the recipient within a grant period, 10 percent of the total funds provided to the recipient under this title for the applicable grant period.
(iii)
For the third or any subsequent finding of violation by the recipient within a grant period, 15 percent of the total funds provided to the direct recipient under this title for the applicable grant period.
(B) Limitation
In no case shall the total penalty imposed against a single direct recipient for all findings within a single grant period exceed 15 percent of the total funds provided to the recipient for the applicable grant period.
(C) Required penalty
The penalties described in this paragraph are mandatory and the Secretary has no discretion to waive or reduce such a penalty except through the appeals process under subparagraph (D).
(D) Appeals
A direct recipient of a grant who is assessed a penalty under this paragraph may file an appeal of such penalty with the Secretary. Appeals from any determination of noncompliance or penalty amount under this subsection shall be governed by part 16 of title 45, Code of Federal Regulations (or any successor regulations). The filing of an appeal shall not stay the withholding of future payments or funding tranches pending resolution of the appeal, but any amounts recovered by the Secretary from already-disbursed funds shall not be collected pending final resolution of the appeal.
(4) Regulations
The Secretary shall issue such regulations as are necessary and appropriate to carry out this subsection, including regulations establishing procedures for written notice of noncompliance, opportunity to respond, and administrative review prior to any final determination under paragraph (1).
(5) Clarifications
Nothing in this subsection shall be construed to limit the authority of the Secretary to pursue any other remedy available under part 200 or 300 of title 2, Code of Federal Regulations (or any successor regulations), or any other applicable Federal law with respect to violations of any other provision of this title, or to limit the Secretary's authority to impose remedies in addition to the penalties prescribed in paragraph (3) for violations of subsection (b) or (c) where the Secretary determines that additional remedies are necessary to protect Federal funds.
Sec. 103. Reports
Section 107 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5106c) is amended—
(1)
in subsection (e)(2)(A), by inserting , provided the alternative does not violate the limitations set forth in subsection (f)
before the semicolon;
(2)
by redesignating subsection (f) as subsection (g); and
(3)
by inserting after subsection (e) the following:
(f) Limitations
(1) In general
No State task force review or recommendation made pursuant to this section shall—
(A)
recommend any reform of State law, ordinance, regulation, protocol, or procedure that would expand the definition of child abuse, child neglect, parental unfitness or incapacity to encompass a parent's, legal guardian's, or caregiver's affirmation of the child’s sex; or
(B)
recommend, promote, facilitate or endorse the use of any training program, clinical protocol, or professional standard that is inconsistent with section 115.
(2) Withholding and recoupment for noncompliance
A State task force that issues any recommendation prohibited as described in paragraph (1) shall be deemed to be in noncompliance with this section, and the Secretary shall—
(A)
withhold any further assistance until such prohibited recommendation is formally rescinded by the State task force and the Secretary certifies that the task force is in compliance with paragraph (1); and
(B)
if the funds have already been disbursed during the period of noncompliance, recover such funds in accordance with the graduated penalty formula set forth in section 115(e)(3) for the total funds provided for that grant period.
Sec. 104. Definitions
Subsection (a) of section 111 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5106g) is amended to read as follows:
(a) Definitions
For purposes of this title:
(1)
(A)
The term adverse State action means any covered action taken by a covered entity, if any of the following was a motivating factor, without regard to how the covered entity characterizes the reason for the covered action:
(i)
Affirmation of, or intent to affirm, the child's sex by the parent, legal guardian, or caregiver.
(ii)
The child’s request to be treated in a manner inconsistent with the child's sex or the child's request for, or attempt to obtain, sex-rejecting interventions.
(iii)
The child’s expression of psychological distress, including suicidal ideation or threat of self-harm, related to affirmation of the child's sex by the parent, legal guardian, or caregiver.
(iv)
That the child ran away, threatens to run away, or intends to run away from or requests no contact with a parent, legal guardian, or caregiver because of a circumstance described in clause (i), (ii), or (iii).
(B)
For purposes of subparagraph (A), a covered action includes any of the following:
(i)
The removal or threat of removal of a child from the home, or the removal or threat of removal of a parent, legal guardian, or caregiver from the home, including removal of the child or such parent, legal guardian, or caregiver pursuant to any safety plan or other protective-services action by a covered entity.
(ii)
Any assessment, investigation, or inquiry conducted for the purpose of determining the existence of child abuse, neglect, or parental unfitness or incapacity.
(iii)
Any dependency, child welfare, or juvenile court proceeding, including any investigation, removal proceeding, proceeding to limit or condition the exercise of parental rights, proceeding relating to visitation, proceeding to terminate parental rights, or other related child welfare or court proceeding.
(iv)
Denying, impeding, interfering with or unreasonably delaying—
(I)
the parent’s, legal guardian’s, or caregiver’s visitation, communication, or meeting with the child;
(II)
the parent's, legal guardian's, or caregiver’s scheduled meeting, case conference, or other planned communication with an employee or agent of a covered entity regarding the child; or
(III)
the return of the child to the parent, legal guardian, or caregiver.
(v)
The making of any finding or substantiation of child abuse, neglect, or parental unfitness or incapacity.
(vi)
Any case plan, safety plan, service plan, or reunification plan recommendation or requirement imposed by a covered entity as a condition of visitation, communication, or meeting with a child, reunification, return of a child, or continued family preservation.
(vii)
The involuntary termination of parental rights to a child or to a sibling of a child.
(viii)
Placement on a State child abuse registry or index.
(ix)
The delay or denial of foster-care placement or adoption.
(2)
The terms affirm, affirmed, and affirmation, with respect to the sex of a child, mean referring to or raising the child, or intending to refer to or raise the child, as his or her sex, including refusing to consent to sex-rejecting interventions for the child.
(3)
The term Alaska Native has the meaning given the term Native in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602).
(4)
The term caregiver means any person who provides ongoing care, supervision, and decision-making for a child on a regular basis, including a licensed foster parent, kinship caregiver, pre-adoptive foster parent, or person acting in loco parentis, but does not include any person who is a parent or legal guardian.
(5)
The term covered entity means—
(A)
an entity that has received funds under this title, directly or as a recipient of a subgrant, including—
(i)
any State, and any agency of a State that administers child protective services, child welfare services, or related functions;
(ii)
any Indian Tribe or Tribal organization; or
(iii)
any public or private agency or organization that contracts with any entity listed in clause (i) or (ii); or
(B)
any individual who is a contractor, employee, or agent of any of the entities described in subparagraph (A).
(6)
The term disorder of sex development means a congenital condition involving atypical complement or structure or development of sex chromosomes, gonads, internal genital ducts, or external genitalia, including disorders of sex hormone synthesis or action, but does not include psychological or behavioral conditions, nor typical male or female sex development with distress regarding sexed anatomy.
(7)
The term infant or toddler with a disability has the meaning given the term in section 632 of the Individuals with Disabilities Education Act (20 U.S.C. 1432).
(8)
The term Native Hawaiian has the meaning given the term in section 6207 of the Elementary and Secondary Education Act of 1965.
(9)
The term sex means an individual’s immutable biological sex, either—
(A)
male, whereby the individual naturally has, had, will have, or would have, but for a disorder of sex development or an intentional or unintentional disruption, the reproductive system that produces, transports, and utilizes the small gamete (sperm) for fertilization; or
(B)
female, whereby the individual naturally has, had, will have, or would have, but for a disorder of sex development or an intentional or unintentional disruption, the reproductive system that produces, transports, and utilizes the large gamete (ova) for fertilization.
(10)
The term sex-rejecting intervention—
(A)
means a psychological, medical, or surgical intervention that is intended to promote, endorse, or enable a child’s rejection of the child’s sex, to promote, endorse, or enable a child to adopt an appearance that does not correspond to the child's sex, or to intentionally change the body of a child, including the child's external appearance or biological functions, to no longer correspond to the child's sex, including—
(i)
intentionally delaying, halting, or disrupting the natural development of the child’s body, including the onset or progression of puberty, so that the child's body does not develop or halts developing to correspond to the child’s sex, which may include the use of puberty blocking drugs, such as gonadotropin releasing hormone agonists or antagonists;
(ii)
prescribing, administering, or dispensing to the child androgen blockers or sex hormones such as estrogen, progesterone, or testosterone;
(iii)
prescribing or performing any surgical procedure that attempts to transform the physical appearance, or that attempts to alter or remove the tissues, cavities, bone, cartilage, or organs, of a child;
(iv)
providing compression materials or garments that are designed to constrict female breasts, or that flatten or tuck a male’s genitals, prosthetic breasts, genitals, or hips, or any other materials that enable the child to conceal his or her sex or to simulate the physical characteristics of the opposite sex; or
(v)
permitting or assigning a child who is 4 years of age or older to—
(I)
use sleeping quarters, bathrooms, locker rooms, changing rooms, or other areas in which a child may be in a state of undress, with individuals of the opposite sex; or
(II)
participate in sex-separated activities designated for individuals of the opposite sex; and
(B)
does not include the treatment of a disorder of sex development or the treatment of any infection, injury, disease, or disorder that has been caused or exacerbated by the performance of an intervention described in any of clauses (i) through (iv) of subparagraph (A).
(11)
The term sexual abuse includes—
(A)
the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct for the purpose of producing a visual depiction of such conduct; or
(B)
the rape, and in cases of caretaker or inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.
(12)
The term withholding of medically indicated treatment means the failure to respond to the infant's life-threatening conditions by providing treatment (including appropriate nutrition, hydration, and medication) which, in the treating physician's or physicians' reasonable medical judgment, will be most likely to be effective in ameliorating or correcting all such conditions, except that the term does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant when, in the treating physician's or physicians' reasonable medical judgment—
(A)
the infant is chronically and irreversibly comatose;
(B)
the provision of such treatment would—
(i)
merely prolong dying;
(ii)
not be effective in ameliorating or correcting all of the infant's life-threatening conditions; or
(iii)
otherwise be futile in terms of the survival of the infant; or
(C)
the provision of such treatment would be virtually futile in terms of the survival of the infant and the treatment itself under such circumstances would be inhumane.
Sec. 105. Rule of construction
Section 113(a) of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5106i(a)) is amended—
(1)
in paragraph (1), by striking ; and
and inserting a semicolon;
(2)
in paragraph (2), by striking the period and inserting a semicolon; and
(3)
by adding at the end the following:
(3)
as establishing a Federal requirement that a parent, legal guardian or caregiver provide a child any medical service or treatment against the religious beliefs of the parent or legal guardian; or
(4)
as establishing that affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, or prospective foster or adoptive parent is child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to a child’s health, safety or welfare, or indication of parental unfitness or incapacity.
Sec. 106. Private right of action
Title I of Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.), as amended by section 103, is further amended by adding at the end the following:
116. Private right of action
(a) Cause of Action
Any parent, legal guardian, caregiver, or child who is aggrieved by an adverse State action alleged to have been taken by a covered entity, or any parent, legal guardian, or caregiver who is aggrieved by a violation of section 115(b) may bring a civil action seeking relief in any United States district court, regardless of whether the specific operation, division, facility, or program of the covered entity that was engaged in such adverse State action was itself funded, in whole or in part, by an award under this title.
(b) Liability of a covered entity for the conduct of others
For purposes of subsection (a), a covered entity described in section 111(a)(5)(A) waives any defense based on the absence of respondeat superior liability, and shall be vicariously liable under this section for any adverse State action, or any violation of the right protected under section 115(b), that is committed by any employee, contractor, or agent of such covered entity, without regard to whether such adverse State action or violation—
(1)
resulted from an official policy or custom of the covered entity;
(2)
was known to any supervisory official of the covered entity; or
(3)
was within the scope of such covered entity’s employment, contract, or agency.
(c) Rebuttable presumption
(1) In general
For purposes of any action brought under this section, there is a rebuttable presumption that an adverse State action or a violation of the right protected under section 115(b) was because of the affirmation of a child’s sex if—
(A)
a case record, report, petition, recommendation, or other agency or court document includes the affirmation of the child’s sex as a basis for, contributing factor in, or concern related to the adverse State action; or
(B)
a recommendation, order, or agreement has been made that a child be removed from a parent, legal guardian, or caregiver and be placed in a home, institution, or other placement setting that—
(i)
provides, permits or encourages the child to undergo any sex-rejecting intervention, or
(ii)
without parental consent, uses pronouns or titles that do not correspond to the child’s sex.
(2) Rebuttal
A covered entity bears the burden of rebutting the presumption described in paragraph (1) by clear and convincing evidence that the affirmation of the child’s sex was not a factor in the adverse State action or violation of the right protected under section 115(b).
(d) Nonapplication of exhaustion of Remedies
The exhaustion of any State or administrative remedies is not required as a condition of filing an action described in this section.
(e) Relief
As a condition of accepting funds under this title, each of the remedies described in this subsection is available to a prevailing parent, legal guardian, caregiver, or child. In any such action, the court may award—
(1)
declaratory relief;
(2)
preliminary and permanent injunctive relief, including an order enjoining, vacating, or prohibiting the enforcement of any adverse State action or any violation of the right protected under section 115(b), notwithstanding section 2283 of title 28, United States Code, except where the covered entity demonstrates by clear and convincing evidence that such relief would create an imminent risk of serious physical harm to the child based on conduct independent of the adverse State action or violation;
(3)
compensatory damages; and
(4)
damages for emotional distress suffered by a parent, legal guardian, caregiver, or child.
(f) Costs and attorney's fees
In any action brought under this section, the court shall award the prevailing parent, legal guardian, caregiver, or child costs of litigation and attorney's fees.
(g) Abrogation of qualified immunity
In any action brought under this section against an employee, contractor, or agent of a covered entity, qualified immunity shall not be available as a defense. To satisfy the requirement that the law be clearly established at the time of the violation, it is sufficient that the conduct constituted an adverse State action or violated the right protected under section 115(b). The absence of an express policy, procedure, or protocol by the State or a covered entity described in section 111(a)(5)(A) shall not preclude a finding that the law was clearly established or that the employee, contractor, or agent of a covered entity knew or should have known that the conduct was unlawful.
(h) Waiver of sovereign immunity
(1) In general
(A) State immunity
By accepting funds under this title, a State and any covered entity described in section 111(a)(5)(A)(i) shall waive immunity under the Eleventh Amendment to the Constitution of the United States from suit in Federal court for any adverse State action or for any violation of the right protected under section 115(b).
(B) Tribal immunity
By accepting funds under this title, a covered entity described in section 111(a)(5)(A)(ii) shall waive immunity from suit in Federal court for any adverse State action or for any violation of the right protected under section 115(b).
(2) Remedies available
(A) State defendants
In an action against a State or covered entity described in section 111(a)(5)(A)(i) for any adverse State action or for any violation of the right protected under section 115(b), remedies (including remedies both at law and in equity) are available to the same extent as such remedies are available in an action against any public or private entity other than a State.
(B) Tribal defendants
In an action against an Indian Tribe or Tribal organization for any adverse State action or for any violation of the right protected under section 115(b), remedies (including remedies both at law and in equity) are available to the same extent as such remedies are available in an action against any public or private entity other than an Indian Tribe or Tribal organization.
(i) Statute of limitations
(1) In general
Except as provided in paragraph (3), an action under this section shall commence not later than 4 years after the date on which the cause of action accrues.
(2) Accrual
For purposes of paragraph (1), a cause of action accrues on the date a parent, legal guardian, caregiver, or child knew or reasonably should have known of the violation giving rise to the claim, or, in the case of an ongoing violation, on the date the violation ceases.
(3) Tolling
The limitations period under paragraph (1) shall be tolled—
(A)
with respect to a claim brought on behalf of a minor child until the later of—
(i)
the date the child attains the age of 18; or
(ii)
the date that is 4 years after the date the violation occurred; and
(B)
during the pendency of any State or Indian child welfare proceeding arising from the same facts as the Federal claim, and for the 2-year period following the final resolution of such proceeding.
(j) Relationship to other laws
(1) Non-preemption
Nothing in this section shall be construed to preempt any State law that provides greater protection than the rights established under this section.
(2) Other applicable laws
The rights established under this section are in addition to, and not in lieu of, any rights available under the Constitution of the United States, section 1979 of the Revised Statutes (42 U.S.C. 1983), this Act, or any other Federal or State law.
(3) Jurisdiction
Federal courts shall have original jurisdiction over any civil action brought under this section. No action shall be dismissed, stayed or otherwise abated on the basis of—
(A)
the pendency of a State court proceeding;
(B)
any State court judgment or order;
(C)
any doctrine of equitable restraint, abstention, or comity, including any doctrine under which a court declines to exercise jurisdiction because of the pendency or potential pendency of a State judicial or administrative proceeding; or
(D)
the domestic relations exception in Federal jurisdiction, if the action seeks enforcement of a right established under this section, and does not seek the issuance of an original divorce, alimony or child custody decree in a domestic-relations proceeding between private parties.
(4) Other relief
The relief available under this section is in addition to, and not in lieu of, any remedy available to the Secretary under section 115.
Title II Amendments to the Social Security Act
Sec. 201. Amendments to part B of title IV of the Social Security Act
(a) Stephanie Tubbs Jones Child Welfare Services Program State plan requirements
Section 422(b) of the Social Security Act (42 U.S.C. 622(b)) is amended—
(1)
in paragraph (15)(A)—
(A)
in clause (vii), by striking and
after the semicolon; and
(B)
by inserting after clause (viii) the following new clause:
(ix)
the procedures and protocols the State has established to ensure that sex-rejecting interventions are not initiated or continued when a child is removed from the custody, care, or control of the parent or placed in foster care; and;
(2)
in paragraph (18), by striking and
after the semicolon;
(3)
in paragraph (19)(B), by striking the period at the end and inserting a semicolon; and
(4)
by inserting after paragraph (19)(B) the following new paragraphs:
(20)
provide that no placement of a child for adoption or into foster care is prevented, denied, or delayed because the foster parent, prospective foster parent, or prospective adoptive parent may affirm a child’s sex;
(21)
provide that children who are 4 years of age or older in foster care placement are housed in accordance with their sex, including—
(A)
requirements that a foster family home provide either single occupancy or sex-separated multi-occupancy sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other areas in which a child would be in a state of undress when in use by the child;
(B)
requirements that a child-care institution (including any group home, residential treatment center, shelter, qualified residential treatment program, settings for pregnant or parenting foster youth described in section 472(k)(2)(B), setting for sex trafficking victims described in section 472(k)(2)(D) or other congregate care setting) assign a child to and provide either single occupancy or sex-separated multi-occupancy sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other areas in which a child would be in a state of undress, when in use by the child; and
(C)
requirements that licensing standards for foster family homes, child-care institutions, or other placement settings, include compliance with this paragraph as a condition of licensure for any foster family home, child-care institution, or other placement setting receiving funds under this part or part E;
(22)
provide and have in effect policies and procedures, and require any covered entity to have in effect policies and procedures that—
(A)
protect and promote a child's right to be free from sex-rejecting interventions; and
(B)
protect, without express parental consent, a child from the use of pronouns or titles that do not correspond to the child’s sex;
(23)
provide for training for child protective services workers, caseworkers, guardians ad litem, minor’s counsel, court appointed special advocates, judges, other individuals providing services to children and families, foster parents, prospective foster parents, prospective adoptive parents, and parents that includes—
(A)
the medical, psychological, and developmental harms of sex-rejecting interventions and the harms of using pronouns or titles that do not correspond to the child’s sex;
(B)
the right of a parent or legal guardian to affirm a child's sex and of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination or adverse State action for affirming or intending to affirm a child's sex;
(C)
the principle that affirmation of a child's sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is not child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to a child’s health, safety, or welfare, or indication of parental unfitness or incapacity;
(D)
the principle that affirmation of a child’s sex is consistent with the child’s best interests, health, safety, and welfare;
(E)
the prohibition under this part and part E on—
(i)
providing, initiating, or continuing sex-rejecting interventions to children in foster care placements; and
(ii)
without parental consent, the use of pronouns or titles that do not correspond to the child’s sex; and
(F)
the prohibition under this part and part E on denying and delaying the placement of a child in a foster or adoptive home placement because a foster parent, prospective foster parent or prospective adoptive parent may affirm the child's sex;
(24)
provide that the State shall have in effect policies and procedures, and require any covered entity to have in effect policies and procedures that protect and promote the right of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination for affirming or intending to affirm a child’s sex and from any adverse State action;
(25)
provide that the State shall have in effect policies and procedures, and shall require any covered entity to have in effect policies and procedures, that no child, foster parent, prospective foster parent, or prospective adoptive parent may be denied a foster care or adoptive placement because the foster parent, prospective foster parent, or prospective adoptive parent may affirm a child’s sex; and
(26)
provide that the State shall have in effect policies and procedures that protect and promote the right of children in foster care placements to be free from sex-rejecting interventions and require any covered entity to have in effect policies and procedures that include—
(A)
requirements ensuring that no child in foster care under the supervision of the State is subjected to sex-rejecting interventions;
(B)
requirements that no funds under this part or part E shall be used to provide, facilitate, refer, or permit sex-rejecting interventions for any child placed in the covered entity's care;
(C)
requirements that no foster family home, child-care institution, or other placement setting receiving funds under this part or part E shall provide, facilitate, fund, permit, aid or refer for sex-rejecting interventions for any child placed in the foster family home, child-care institution, or other placement setting;
(D)
training for child protective service workers, foster care caseworkers, supervisors, foster parents, guardians ad litem, court-appointed special advocates, minor's counsel, judges, and other individuals providing services to children and families, prospective foster parents, prospective adoptive parents, and parents on—
(i)
the medical, psychological, and developmental harms of sex-rejecting interventions and the harms of using pronouns or titles that do not correspond to the child’s sex;
(ii)
the right of a parent or legal guardian to affirm a child's sex and of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination or adverse State action for affirming or intending to affirm a child's sex;
(iii)
the principle that affirmation of a child's sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is not child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child's best interests, contrary to the child's health, safety, or welfare, or indication of parental unfitness or incapacity;
(iv)
the principle that affirmation of a child’s sex is consistent with the child’s best interests, and the child's health, safety, and welfare;
(v)
the prohibition on providing sex-rejecting interventions to children in foster care placements;
(vi)
the prohibition on the use of pronouns or titles that do not correspond to the child’s sex without the parent’s express consent; and
(vii)
the prohibition on denying, delaying or conditioning the placement of a child in a foster or adoptive home placement because a foster parent, prospective foster parent, or prospective adoptive parent may affirm the child's sex; and
(E)
procedures to prevent sex marker changes (meaning the designation of the child’s sex on any official record, including records maintained under this part or part E) to the child’s records that differ from the child’s sex while the child is in foster care.
(b) Marylee Allen Promoting Safe and Stable Families Program State plan requirements
Section 432(a) of the Social Security Act (42 U.S.C. 629b(a)) is amended—
(1)
in paragraph (10), by striking and
after the semicolon;
(2)
in paragraph (11), by striking the period at the end and inserting ; and
; and
(3)
by inserting after paragraph (11), the following new paragraph:
(12)
complies with the requirements of paragraphs (20) through (26) of section 422(b), as applicable to the services funded under this subpart.
(c) Common provisions
Subpart 3 of part B of title IV of the Social Security Act (42 U.S.C. 629k et seq.) is amended by adding at the end the following new sections:
444. Limitations on the Secretary; obligations on recipients and subrecipients; noncompliance
(a) Limitations on the Secretary
The Secretary shall ensure that no funds provided under this part, including any grants, subgrants and other allocations of funding made pursuant to this part to States, Indian tribes, or tribal organizations, and public and private agencies and organizations, including subrecipients, are used to fund any of the following:
(1)
Conducting, supporting, or promoting any program, project, curriculum, guidance, protocol or training that—
(A)
sex-rejecting interventions are in the best interests of the child or consistent with the health, safety, and welfare of the child;
(B)
affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to the child’s health, safety or welfare, or indication of parental unfitness or incapacity; or
(C)
a child’s expression of psychological distress, including a statement or report of suicidal ideation, related to the affirmation of a child’s sex is grounds for removal of the child from the home, intervention by a welfare agency, or any other adverse State action.
(2)
Discriminating against, or taking an adverse State action against, a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent because such individual affirms, has affirmed, or intends to affirm a child's sex.
(3)
Conducting, supporting, or promoting any adverse State action.
(4)
Providing, facilitating, funding, authorizing, permitting for a child, or referring a child for any sex-rejecting intervention.
(5)
Removing a child from a parent, legal guardian, or caregiver and placing the child in a foster family home, child-care institution, or other placement setting that—
(A)
provides, permits, or encourages the child to undergo any sex-rejecting intervention; or
(B)
without parental consent, uses pronouns or titles that do not correspond to the child’s sex.
(6)
Placing a child in a foster care placement that fails to provide either single occupancy or sex-separated multi-occupancy spaces in compliance with section 422(b)(21).
(b) Obligations on recipients and subrecipients
Any State, Indian tribe or tribal organization, or public and private agency or organization, including any subrecipient that receives funds under this part, shall not use such funds for any program, training, or other activity that violates any of the limitations set forth in subsection (a).
(c) Withholding and recoupment for noncompliance
(1) In general
If the Secretary determines that any State, Indian tribe, tribal organization, or public or private agency or organization, including any subrecipient, has used funds in violation of the limitations or obligations set forth in subsection (a) or (b), paragraphs (20) through (26) of section 422(b), or section 432(a)(12), or in violation of any right, restriction, limitation, obligation, or condition established under section 479C as applicable to this part or part E, the Secretary shall disallow the costs associated with such violation and shall impose the applicable penalty amount determined under paragraph (2). Such withholding shall apply to any future payments or funding tranches not yet disbursed and shall remain in effect until the Secretary certifies that the violation has been remediated and that the direct recipient has adopted policies and procedures sufficient to prevent recurrence. Recovery shall apply to funds already disbursed, which shall constitute a debt to the Federal Government as of the date of the Secretary’s written determination of noncompliance, collectible in accordance with parts 200 and 300 of title 2, Code of Federal Regulations (or any successor regulation), including through administrative offset against any other Federal payments owed to the entity under this or any other Federal program administered by the Department of Health and Human Services.
(2) Direct recipients
(A) In general
The direct recipient of funds provided under this part shall be strictly responsible for ensuring compliance with this part by all subrecipients to which it passes such funds, and any violation by a subrecipient shall be attributed to the direct recipient. The penalty amount subject to disallowance, withholding, and recovery under paragraph (1) shall be—
(i)
for the first finding of violation by the direct recipient within a grant period, 5 percent of the total funds provided to the direct recipient for that grant period;
(ii)
for the second finding of violation by the direct recipient within a grant period, 10 percent of the total funds provided to the direct recipient for that grant period; and
(iii)
for the third or any subsequent finding of violation by the direct recipient within a grant period, 15 percent of the total funds provided to the direct recipient under this part for that grant period.
(B) Maximum penalty
In no case shall the total penalty imposed against a single direct recipient for all findings within a single grant period exceed 15 percent of the total funds provided to that direct recipient for that grant period.
(C) No waiver
A penalty required by this subsection is mandatory and the Secretary shall not have any discretion to waive or reduce the penalty applicable except through the appeals process provided in paragraph (3).
(3) Appeals
Appeals from any determination of noncompliance or penalty amount under this subsection shall be governed by part 16 of title 45, Code of Federal Regulations (or any successor regulation). The filing of an appeal shall not stay the withholding of future payments or funding tranches pending resolution of the appeal, but any amounts recovered by the Secretary from already-disbursed funds shall not be collected pending final resolution of the appeal.
(4) Regulations
The Secretary shall issue such regulations as are necessary and appropriate to carry out this subsection, including regulations establishing procedures for written notice of noncompliance, opportunity to respond, and administrative review prior to any final determination under paragraph (1).
(5) Other remedies
Nothing in this subsection shall be construed to limit the authority of the Secretary to pursue any other remedy available under parts 200 and 300 of title 2, Code of Federal Regulations (or any successor regulation), or any other applicable Federal law with respect to violations of any other provision of this part, or to limit the Secretary’s authority to impose remedies in addition to the penalties prescribed in paragraph (2) for violations described in paragraph (1) where the Secretary determines that additional remedies are necessary to protect Federal funds.
445. Private right of action
(a) Causes of action
(1) In general
Any parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child who is aggrieved by an adverse State action or, in the case of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent, a violation of a right protected under section 479C(b), that is alleged to have been taken by a covered entity may bring an action seeking relief from a covered entity in any United States district court regardless of whether the specific operation, division, facility, or program of the covered entity that engaged in such adverse State action was itself funded, in whole or in part, by an award or payment made under this part or part E.
(2) Liability of a covered entity for conduct of others
For purposes of paragraph (1), a covered entity described in subparagraph (A), (B), or (C) of section 475(19) waives any defense based on the absence of respondeat superior liability, and shall be vicariously liable under this section for any adverse State action or any violation of the right protected under section 479C(b) that is committed by any employee, contractor, or agent of such covered entity, without regard to whether such adverse State action or violation—
(A)
resulted from an official policy or custom of the covered entity;
(B)
was known to any supervisory official of the covered entity; or
(C)
was within the scope of such covered entity’s employment, contract, or agency.
(3) Rebuttable presumption
For purposes of any action brought under this section, there is a rebuttable presumption that an adverse State action or a violation of the right protected under section 479C(b) was because of the affirmation of a child’s sex if—
(A)
a case record, report, petition, recommendation, or other agency or court document includes the affirmation of the child’s sex as a basis for, contributing factor in, or concern related to the adverse State action; or
(B)
a recommendation, order, or agreement has been made that a child be removed from a parent, legal guardian, or caregiver and be placed in a foster family home, child-care institution, or other placement setting that—
(i)
provides, permits, or encourages the child to undergo any sex-rejecting intervention; or
(ii)
without parental consent, uses pronouns or titles that do not correspond to the child’s sex.
(4) Rebuttal
A covered entity bears the burden of rebutting the presumption described in paragraph (3) by clear and convincing evidence that the affirmation of the child’s sex was not a factor in the adverse State action or violation of the rights protected under section 479C(b).
(b) Nonapplication of exhaustion of remedies
Exhaustion of any State or administrative remedies shall not be required as a condition of bringing an action described in subsection (a).
(c) Relief
(1) In general
As a condition of accepting funds under this part, each of the remedies described in paragraph (2) is available to a prevailing parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child in an action brought under this section.
(2) Remedies
The remedies described in this paragraph are—
(A)
declaratory relief;
(B)
preliminary and permanent injunctive relief, including an order enjoining, vacating, or prohibiting the enforcement of any adverse State action or any violation of the right protected under section 479C(b), notwithstanding section 2283 of title 28, United States Code, except where the covered entity demonstrates by clear and convincing evidence that such relief would create an imminent risk of serious physical harm to the child based on conduct independent of the adverse State action or violation;
(C)
compensatory damages; and
(D)
damages for emotional distress suffered by a parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child.
(d) Costs and attorney’s fees
In any action brought under this section, the court shall award the prevailing parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child, costs of litigation and attorney’s fees.
(e) Abrogation of qualified immunity
In any action brought under this section against an employee, contractor, or agent of a covered entity described in subparagraph (D) of section 475(19), qualified immunity shall not be available as a defense. To satisfy the requirement that the law be clearly established at the time of the violation, it is sufficient that the conduct constituted an adverse State action or violated the right protected under section 479C(b). The absence of an express policy, procedure, or protocol by a covered entity described in subparagraph (A), (B), or (C) of section 475(19) shall not preclude a finding that the law was clearly established or that the employee, contractor, or agent of a covered entity described in subparagraph (D) of section 475(19) knew or should have known that the conduct was unlawful.
(f) Waiver of sovereign immunity
(1) In general
(A) State immunity
A covered entity described in subparagraph (A) of section 475(19), as a condition of accepting funds under this part, shall waive immunity under the Eleventh Amendment to the Constitution of the United States from suit in Federal court for any adverse State action or any violation of the right protected under section 479C(b).
(B) Tribal immunity
A covered entity described in subparagraph (B) of section 475(19), as a condition of accepting funds under this part, shall waive immunity from suit in Federal court for any adverse State action or any violation of the right protected under section 479C(b).
(2) Remedies available
In any action against a State or Indian tribe or tribal organization for any adverse State action or any violation of the right protected under section 479C(b), remedies (including remedies both at law and in equity) are available in a suit against any public or private entity other than a State or Indian tribe, or tribal organization.
(g) Statute of limitations
(1) In general
Except as provided in paragraph (3), an action under this section may not be commenced later than 4 years after the date on which the cause of action accrues.
(2) Accrual
For purposes of paragraph (1), a cause of action accrues on the date a parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child knew or reasonably should have known of the violation giving rise to the claim, or, in the case of an ongoing violation, on the date the violation ceases.
(3) Tolling
The limitations period under paragraph (1) shall be tolled—
(A)
with respect to a claim brought on behalf of a minor child, until the later of—
(i)
the date the child attains the age of 18; or
(ii)
the date that is 4 years after the date the violation occurred; and
(B)
during the pendency of any State or Indian child welfare proceeding arising from the same facts as the Federal claim, and for the 2-year period following the final resolution of such proceeding.
(h) Relationship to other laws
(1) Non-preemption
Nothing in this section shall be construed to preempt any State law that provides greater protection than the rights established under this section.
(2) Other applicable laws
The rights established under this section are in addition to, and not in lieu of, any rights available under the Constitution of the United States, section 1979 of the Revised Statues (commonly referred to as
section 1983) (42 U.S.C. 1983), the Yaeli Martinez Child Protection Act, or any other Federal or State law.(3) Jurisdiction
Federal courts shall have original jurisdiction over any civil action brought under this section. No action shall be dismissed, stayed or otherwise abated on the basis of—
(A)
the pendency of a State court proceeding;
(B)
any State court judgment or order;
(C)
any doctrine of equitable restraint, abstention, or comity, including any doctrine under which a court declines to exercise jurisdiction because of the pendency or potential pendency of a State judicial or administrative proceeding; or
(D)
the domestic relations exception in Federal jurisdiction, if the action seeks enforcement of a right established under this section, and does not seek the issuance of an original divorce, alimony, or child custody decree in a domestic-relations proceeding between private parties.
Sec. 202. Amendments to part E of title IV of the Social Security Act
(a) State plan requirements
Section 471(a) of the Social Security Act (42 U.S.C. 671(a)) is amended—
(1)
in paragraph (10)—
(A)
in subparagraph (A), by inserting , and which do not violate paragraphs (38) through (42)
after prudent parenting standard
; and
(B)
in subparagraph (D), by inserting , except that there can be no waiver of the requirements of paragraphs (38) through (42)
after children in care
;
(2)
in paragraph (15)—
(A)
in subparagraph (A), by inserting , and that, in determining such reasonable efforts to be made with respect to a child, and in making such reasonable efforts, a parent’s, legal guardian’s, or caregiver’s affirmation of a child’s sex shall be considered in furtherance of the child’s health and safety, and affirmation of a child’s sex, shall not serve as a basis to limit or deny reasonable efforts to preserve and reunify families
after paramount concern
; and
(B)
in paragraph (D)(iii), by inserting , except if the termination was because the parent affirmed the sibling’s sex
after involuntarily
;
(3)
in paragraph (18)—
(A)
in the matter preceding subparagraph (A), by inserting (in the case of subparagraphs (A) and (B), and in the case of subparagraph (C), not later than 1 year after the date of enactment of the Yaeli Martinez Child Protection Act)
after January 1, 1997,
;
(B)
in subparagraph (A), by striking or
after the semicolon;
(C)
in subparagraph (B), by adding or
after the semicolon; and
(D)
by inserting after subparagraph (B), the following new subparagraph:
(C)
delay or deny to any person the opportunity to become an adoptive or foster parent because the person may affirm the child’s sex;;
(4)
in paragraph (22), by inserting , and, not later than 1 year after the date of enactment of the Yaeli Martinez Child Protection Act, that comply with paragraphs (38) through (42), and that protect against the use of pronouns or titles, without express parental consent, that do not correspond to the child's sex
after safety and health of the children
;
(5)
in paragraph (36)(D), by striking and
after the semicolon;
(6)
in paragraph (37), by striking the period at the end and inserting a semicolon; and
(7)
by inserting after paragraph (37), the following new paragraphs:
(38)
provides that the State shall have in effect policies and procedures, and require that any covered entity have in effect policies and procedures that protect and promote the right of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination for affirming or intending to affirm a child’s sex and from any adverse State action;
(39)
has in effect policies and procedures, and requires any covered entity to have in effect policies and procedures, ensuring that foster care or adoptive placement of a child shall not be denied or delayed because a foster parent, prospective foster parent, or prospective adoptive parent may affirm a child’s sex;
(40)
provides, and has in effect policies and procedures, and requires any covered entity to have in effect policies and procedures that—
(A)
protect and promote a child’s right to be free from sex-rejecting interventions, and without express parental consent, protect a child from the use of pronouns or titles that do not correspond to the child’s sex;
(B)
require ensuring that no child in foster care under the supervision of the State is subjected to sex-rejecting interventions;
(C)
require that no funds under this part shall be used, for any child placed in the covered entity's care, to provide, facilitate, fund, authorize, permit for the child, or refer the child for, any sex-rejecting intervention;
(D)
require that no foster family home, child-care institution, or other placement setting receiving funds under this part shall provide, facilitate, fund, permit, aid, or refer sex-rejecting interventions for any child placed in the foster family home, child-care institution, or other placement setting;
(E)
require training for child protective services workers, foster care caseworkers, supervisors, foster parents, guardians ad litem, court-appointed special advocates, minor’s counsel, judges, and other individuals providing services to children and families, prospective foster parents, prospective adoptive parents, and parents on—
(i)
the medical, psychological, and developmental harms of sex-rejecting interventions and the harms of using pronouns or titles that do not correspond to the child’s sex;
(ii)
the right of a parent or legal guardian to affirm a child's sex and the right of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination or adverse State action for affirming or intending to affirm a child’s sex;
(iii)
the principle that affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is not child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to a child’s health, safety or welfare, or indication of parental unfitness or incapacity;
(iv)
the principle that affirmation of a child’s sex is consistent with the child’s best interests;
(v)
the prohibition on providing sex-rejecting interventions to children in foster care placements;
(vi)
the prohibition on the use of pronouns or titles that do not correspond to the child’s sex without the parent’s express consent; and
(vii)
the prohibition on denying, delaying or conditioning the placement of a child in a foster or adoptive home placement because a foster parent, prospective foster parent, or prospective adoptive parent may affirm the child’s sex; and
(F)
procedures to prevent sex marker changes (meaning the designation of the child’s sex on any official record, including records maintained under this part or part B) to the child’s records case that differ from the child’s sex, while the child is in foster care;
(41)
has in effect procedures and requirements ensuring that children who are 4 years of age or older in foster care placements are housed in accordance with their sex, including—
(A)
requirements that a foster family home provide either single occupancy or sex-separated multi-occupancy sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other areas in which a child would be in a state of undress when in use by the child;
(B)
requirements that a child-care institution (including any group home, residential treatment center, shelter, qualified residential treatment program, settings for pregnant or parenting foster youth described in section 472(k)(2)(B), setting for sex trafficking victims described in section 472(k)(2)(D) or other congregate care setting) assign the child to and provide either single occupancy or sex-separated multi-occupancy sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other areas in which a child would be in a state of undress, when in use by the child; and
(C)
requirements that licensing standards for foster family homes, child-care institutions, and other placement settings include compliance with subparagraphs (A) and (B) as a condition of licensure for any foster family home, child-care institution, or other placement setting receiving funds under this part; and
(42)
has in effect procedures and requirements ensuring that no sex-rejecting interventions are initiated or continued when the child is removed from the custody, care, or control of the parent.
(b) Prevention and family services and programs
Section 471(e) of the Social Security Act (42 U.S.C. 671(e)) is amended—
(1)
in paragraph (4), by adding at the end the following new subparagraph:
(F) Limitations
State expenditures for services or programs that facilitate, promote, provide, fund, or authorize sex-rejecting interventions shall not be eligible for a Federal matching payment under section 474(a)(6)(A) and shall not be treated as meeting the requirements of evidence-based or medically-proven practices.;
(2)
in paragraph (5)(C)—
(A)
in clause (i), by inserting and does not include promoting, facilitating, or providing sex-rejecting interventions, referring to or treating the child in a manner that does not correspond to the child’s sex, or without express parental consent, using pronouns or titles that do not correspond to the child’s sex
after strategy for that practice
; and
(B)
in clause (ii), by inserting , except for the requirement that the practice may not include promoting, facilitating, or providing sex-rejecting interventions, referring to or treating the child in a manner that does not correspond to the child’s sex, or without express parental consent, using pronouns or titles that do not correspond to the child’s sex
after with regard to the practice
.
(c) Foster care maintenance payments
Section 472 of the Social Security Act (42 U.S.C. 672) is amended—
(1)
in subsection (a)(2)(A)—
(A)
in clause (i), by striking or
after the semicolon;
(B)
in clause (ii), by adding or
after the semicolon; and
(C)
by inserting after clause (ii), the following new clause:
(iii)
the limitations and requirements provided in paragraphs (38) through (42) of section 471(a);; and
(2)
in subsection (c)(1)(A)(ii)(I), by inserting and capable of housing the child in compliance with the requirements of section 471(a)(41)
after prudent parent standard
.
(d) Payments
Section 474 of the Social Security Act (42 U.S.C. 674) is amended—
(1)
in subsection (d)—
(A)
in paragraph (1), in the matter preceding subparagraph (A)—
(i)
by inserting Reduction for violation of plan requirement; private right of action.—
before If, during
;
(ii)
by striking or (23) of section 471(a)
and inserting , (23), (38), (39), (40), (41), or (42) of section 471(a), or any right, restriction, limitation, obligation, or condition established under section 479C as applicable to this part or part B,
; and
(iii)
by striking such violation
and inserting violations of paragraphs (18) and (23) of section 471(a), and not to exceed 30 days with respect to violations of paragraphs (38) through (42) of section 471(a) or of any right, restriction, limitation, obligation, or condition established under section 479C as applicable to this part or part B
;
(B)
in paragraph (2)—
(i)
by inserting (A)
after (2)
;
(ii)
by striking or (23) of section 471(a)
and inserting , (23), (38), (39), (40), (41), or (42) of section 471(a), or any right, restriction, limitation, obligation, or condition established under section 479C as applicable to this part or part B,
; and
(iii)
by adding at the end the following:
(B)
For purposes of this subsection, a failure to comply substantially with paragraph (38), (39), (40), (41), or (42) of section 471(a), or with any right, restriction, limitation, obligation, or condition established under section 479C as applicable to this part or part B, shall be treated as a failure subject to the reductions and remedies provided under this subsection.; and
(C)
by adding at the end the following new paragraph:
(5) Private right of action
(A) In general
By accepting funds under this part, the State and any covered entity agree to be bound by the following provisions of this paragraph.
(B) Cause of action
Any parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child who is aggrieved by an adverse State action or, in the case of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent, a violation of a right protected under section 479C(b), that is alleged to have been taken by a covered entity may bring an action seeking relief from a covered entity in any United States district court regardless of whether the specific operation, division, facility, or program of the covered entity that engaged in such adverse State action was itself funded, in whole or in part, by an award or payment made under this part or part B.
(C) Liability of a covered entity for conduct of others
For purposes of subparagraph (B), a covered entity described in subparagraph (A), (B), or (C) of section 475(19) waives any defense based on the absence of respondeat superior liability, and shall be vicariously liable under this paragraph for any adverse State action or any violation of the right protected under section 479C(b) that is committed by any employee, contractor, or agent of such covered entity, without regard to whether such adverse State action or violation—
(i)
resulted from an official policy or custom of the covered entity;
(ii)
was known to any supervisory official of the covered entity; or
(iii)
was within the scope of such covered entity’s employment, contract, or agency.
(D) Rebuttable presumption
For purposes of any action brought under this paragraph, there is a rebuttable presumption that an adverse State action or a violation of the right protected under section 479C(b) was because of the affirmation of a child’s sex if—
(i)
a case record, report, petition, recommendation, or other agency or court document includes the affirmation of the child’s sex as a basis for, contributing factor in, or concern related to the adverse State action; or
(ii)
a recommendation, order, or agreement has been made that a child be removed from a parent, legal guardian, or caregiver and be placed in a foster family home, child-care institution, or other placement setting that—
(I)
provides, permits, or encourages the child to undergo any sex-rejecting intervention; or
(II)
without parental consent, uses pronouns or titles that do not correspond to the child’s sex.
(E) Rebuttal
A covered entity bears the burden of rebutting the presumption described in subparagraph (D) by clear and convincing evidence that the affirmation of the child’s sex was not a factor in the adverse State action or violation of the rights protected under section 479C(b).
(F) Nonapplication of exhaustion of remedies
Exhaustion of any State or administrative remedies shall not be required as a condition of bringing an action described in subparagraph (B).
(G) Relief
(i) In general
As a condition of accepting funds under this part, each of the remedies described in clause (ii) is available to a prevailing parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child in an action brought under this paragraph.
(ii) Remedies
The remedies described in this clause are—
(I)
declaratory relief;
(II)
preliminary and permanent injunctive relief, including an order enjoining, vacating, or prohibiting the enforcement of any adverse State action or any violation of the right protected under section 479C(b), notwithstanding section 2283 of title 28, United States Code, except where the covered entity demonstrates by clear and convincing evidence that such relief would create an imminent risk of serious physical harm to the child based on conduct independent of the adverse State action or violation;
(III)
compensatory damages; and
(IV)
damages for emotional distress suffered by a parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child.
(H) Costs and attorney’s fees
In any action brought under this paragraph, the court shall award the prevailing parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child costs of litigation and attorney’s fees.
(I) Abrogation of qualified immunity
In any action brought under this paragraph against an employee, contractor, or agent of a covered entity described in subparagraph (D) of section 475(19), qualified immunity shall not be available as a defense. To satisfy the requirement that the law be clearly established at the time of the violation, it is sufficient that the conduct constituted an adverse State action or violated the right protected under section 479C(b). The absence of an express policy, procedure, or protocol by a covered entity described in subparagraph (A), (B), or (C) of section 475(19) shall not preclude a finding that the law was clearly established or that the employee, contractor, or agent of a covered entity described in subparagraph (D) of section 475(19) knew or should have known that the conduct was unlawful.
(J) Waiver of sovereign immunity
(i) State immunity
A covered entity described in subparagraph (A) of section 475(19), as a condition of accepting funds under this part, shall waive immunity under the Eleventh Amendment to the Constitution of the United States from suit in Federal court for any adverse State action or any violation of the right protected under section 479C(b).
(ii) Tribal immunity
A covered entity described in subparagraph (B) of section 475 (19), as a condition of accepting funds under this part, shall waive immunity from suit in Federal court for any adverse State action or any violation of the right protected under section 479C(b).
(iii) Remedies available
In any action against a State or Indian tribe or tribal organization for any adverse State action or any violation of the right protected under section 479C(b), remedies (including remedies both at law and in equity) are available in a suit against any public or private entity other than a State or Indian tribe, or tribal organization.
(K) Statute of limitations
(i) In general
Except as provided in clause (iii), an action under subparagraph (B) shall commence no later than 4 years after the date on which the cause of action accrues.
(ii) Accrual
For purposes of clause (i), a cause of action accrues on the date a parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child knew or reasonably should have known of the violation giving rise to the claim, or, in the case of an ongoing violation, on the date the violation ceases.
(iii) Tolling
The limitations period under clause (i) shall be tolled—
(I)
with respect to a claim brought on behalf of a minor child, until the later of—
(aa)
the date the child attains the age of 18; or
(bb)
the date that is 4 years after the date the violation occurred; and
(II)
during the pendency of any State or Indian child welfare proceeding arising from the same facts as the Federal claim, and for the 2-year period following the final resolution of such proceeding.
(L) Relationship to other laws
(i) Non-preemption
Nothing in this paragraph shall be construed to preempt any State law that provides greater protection than the rights established under this paragraph.
(ii) Other applicable laws
The rights established under this paragraph are in addition to, and not in lieu of, any rights available under the Constitution of the United States, section 1979 of the Revised Statues (commonly referred to as
section 1983) (42 U.S.C. 1983), the Yaeli Martinez Child Protection Act, or any other Federal or State law.(iii) Jurisdiction
Federal courts shall have original jurisdiction over any civil action brought under subparagraph (B). No action shall be dismissed, stayed or otherwise abated on the basis of—
(I)
the pendency of a State court proceeding;
(II)
any State court judgment or order;
(III)
any doctrine of equitable restraint, abstention, or comity, including any doctrine under which a court declines to exercise jurisdiction because of the pendency or potential pendency of a State judicial or administrative proceeding; or
(IV)
the domestic relations exception in Federal jurisdiction, if the action seeks enforcement of a right established under this section, and does not seek the issuance of an original divorce, alimony or child custody decree in a domestic-relations proceeding between private parties.
(iv) Other relief
The relief available under this paragraph shall be in addition to any relief permitted by the Secretary under this part.; and
(2)
by adding at the end the following new subsection:
(h) Prohibition on Sex-Rejecting Interventions
Notwithstanding any other provision of law, no payments shall be made to a State under this part for any amounts expended for sex-rejecting interventions.
(e) Definitions
Section 475 of the Social Security Act (42 U.S.C. 675) is amended—
(1)
in paragraph (1)—
(A)
by striking subparagraph (A) and inserting the following:
(A)
A description of—
(i)
the type of home or institution in which a child is to be placed, including a discussion of the safety and appropriateness of the placement, how that placement complies with paragraphs (38) through (42) of section 471(a), and how the placement prohibits, without the express consent of the parent, the use of pronouns or titles that do not correspond to the child’s sex; and
(ii)
how the agency which is responsible for the child plans to carry out the voluntary placement agreement entered into or judicial determination made with respect to the child in accordance with section 472(a)(2)(A).; and
(B)
in subparagraph (C)—
(i)
in clause (vi), by striking and
after the semicolon;
(ii)
by redesignating clause (vii) as clause (viii); and
(iii)
by inserting after clause (vi), the following new clause:
(vii)
the child's sex; and;
(2)
in paragraph (2), by striking , as determined by applicable State law
;
(3)
in paragraph (10)(A), by inserting and the affirmation of the child as his or her sex
after developmental growth of the child
; and
(4)
by adding at the end the following new paragraphs:
(14)
(A)
The term adverse State action means any covered action taken by a covered entity if any of the following was a motiving factor, and without regard to how the covered entity characterizes the reason for the covered action:
(i)
Affirmation of, or intent to affirm, the child’s sex by the parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent.
(ii)
The child’s request to be treated in a manner inconsistent with the child’s sex, or the child’s request for or attempt to obtain sex-rejecting interventions.
(iii)
The child’s expression of psychological distress, including suicidal ideation or threat of self-harm, related to affirmation of the child’s sex by the parent, legal guardian, or caregiver.
(iv)
That the child ran away, threatens to run away, intends to run away from, or requests no contact with, a parent, legal guardian, or caregiver because of a circumstance described in clause (i), (ii), or (iii).
(B)
For purposes of subparagraph (A), a covered action includes any of the following:
(i)
The removal or threat of removal of a child from the home, or the removal or threat of removal of a parent, legal guardian, or caregiver from the home, including removal of the child or such parent, legal guardian, or caregiver pursuant to any safety plan or other protective-services action by a covered entity.
(ii)
Any assessment, investigation, or inquiry conducted for the purpose of determining the existence of child abuse, neglect, or parental unfitness or incapacity.
(iii)
Any dependency, child welfare, or juvenile court proceeding, including any investigation, removal proceeding, proceeding to limit or condition the exercise of parental rights, proceeding relating to visitation, proceeding to terminate parental rights, or other related child welfare or court proceeding.
(iv)
Denying, impeding, interfering with, or unreasonably delaying—
(I)
the parent’s, legal guardian’s, or caregiver’s visitation, communication, or meeting with the child;
(II)
the parent’s, legal guardian’s, or caregiver’s scheduled meeting, case conference, or other planned communication with an employee or agent of a covered entity regarding the child; or
(III)
the return of the child to the parent, legal guardian, or caregiver.
(v)
The making of any finding or substantiation of child abuse, neglect, or parental unfitness or incapacity.
(vi)
Any case plan, safety plan, service plan, or reunification plan recommendation or requirement imposed by a covered entity as a condition of visitation, communication, or meeting with a child, reunification, return of a child, or continued family preservation.
(vii)
The involuntary termination of parental rights to a child or to a sibling of a child.
(viii)
Placement on a State child abuse registry or index.
(ix)
The delay or denial of foster care placement or adoption.
(15)
The terms affirmed as his or her sex, affirm a child's sex, affirm the child's sex, affirmation of a child's sex, affirmation of the child's sex, and affirmed the sibling’s sex mean referring to or raising the child, or intending to refer to or raise the child, as his or her sex, including refusing to consent to sex-rejecting interventions for the child.
(16)
The term disorder of sex development means a congenital condition involving atypical complement or structure or development of sex chromosomes, gonads, internal genital ducts, or external genitalia, including disorders of sex hormone synthesis or action, but does not include psychological or behavioral conditions, nor typical male or female sex development with distress regarding sexed anatomy.
(17)
The term sex means an individual’s immutable biological sex, either—
(A)
male, whereby the individual naturally has, had, will have, or would have, but for a disorder of sex development or an intentional or unintentional disruption, the reproductive system that produces, transports, and utilizes the small gamete (sperm) for fertilization; or
(B)
female, whereby the individual naturally has, had, will have, or would have, but for a disorder of sex development or an intentional or unintentional disruption, the reproductive system that produces, transports, and utilizes the large gamete (ova) for fertilization.
(18)
The term sex-rejecting interventions means a psychological, medical, or surgical intervention that is intended to promote, endorse, or enable a child’s rejection of his or her sex, to promote, endorse, or enable a child to adopt an appearance that does not correspond to his or her sex, or to intentionally change the body of a child, including the child’s external appearance or biological functions, to no longer correspond to his or her sex, including—
(A)
intentionally delaying, halting, or disrupting the natural development of the child’s body, including the onset or progression of puberty, so that it does not develop or halts developing to correspond to the child’s sex, including but not limited to the use of puberty blocking drugs, such as gonadotropin releasing hormone agonists or antagonists;
(B)
prescribing, administering, or dispensing to the child androgen blockers or sex hormones such as estrogen, progesterone, or testosterone;
(C)
prescribing or performing any surgical procedure that attempts to transform the physical appearance or that attempts to alter or remove the tissues, cavities, bone, cartilage, or organs of a child;
(D)
providing compression materials or garments that are designed to constrict female breasts, or that flatten or tuck a male’s genitals, prosthetic breasts, genitals, or hips, or any other materials that enable the child to conceal his or her sex or to simulate the physical characteristics of the opposite sex;
(E)
permitting or assigning a child who is 4 years of age or older to—
(i)
use sleeping quarters, bathrooms, locker rooms, changing rooms, or other areas in which a child may be in a state of undress that are designated for individuals of the opposite sex; or
(ii)
participate in sex-separated activities designated for individuals of the opposite sex.
Nothing in this paragraph shall be construed as precluding the treatment of a disorder of sex development or the treatment of any infection, injury, disease, or disorder that has been caused or exacerbated by the performance of an intervention described in subparagraph (A), (B), (C), or (D).
(19)
The term covered entity means any of the following entities that has received funds under this part or part B directly or as a subrecipient:
(A)
Any State and any State or local agency.
(B)
Any Indian tribe or tribal organization.
(C)
Any public or private agency or organization that contracts with any entity listed in subparagraph (A) or (B).
(D)
Any individual who is a contractor, employee, or agent of any of the entities listed in subparagraphs (A), (B), or (C).
Sec. 203. Amendments to the John H. Chafee Foster Care Program for Successful Transition to Adulthood
Section 477 of the Social Security Act (42 U.S.C. 677) is amended—
(1)
in subsection (b)—
(A)
in paragraph (2), by adding at the end the following new subparagraphs:
(G)
Ensure that the programs comply with, and require covered entities receiving funds under this section to comply with, the requirements of paragraphs (38) through (42) of section 471(a) for any youth who has not attained the age of 18 receiving services under this section.
(H)
Ensure that any provider of transitional or independent living services shall comply with the housing requirements of paragraph (41) of section 471(a) with regard to any youth receiving such services who has not attained the age of 18.; and
(B)
in paragraph (3), by adding at the end the following new subparagraphs:
(L)
A certification by the chief executive officer of the State that the State’s programs under this section comply with the requirements of paragraphs (38) through (42) of section 471(a) with respect to services provided to any youth who has not attained the age of 18.
(M)
A certification by the chief executive officer of the State that the State will ensure that any youth who has not attained the age of 18 and who is receiving independent living services funded under this section shall be housed in accordance with the requirements of paragraph (41) of section 471(a).; and
(2)
by adding at the end the following new subsection:
(k) Limitations
No amount paid to a State and no amount received by a covered entity with such funds may be used to provide, facilitate, fund, authorize, or permit for a youth, or refer a youth for, any sex-rejecting intervention for any youth who has not attained the age of 18 and who is receiving services funded under this section.
Sec. 204. Rules of construction; application to funding restrictions under parts B and E of title IV of the Social Security Act
Part E of title IV of the Social Security Act (42 U.S.C. 670 et seq.) is amended by adding at the end the following new section:
479C. Rules of construction; application to funding restrictions under parts B and E
(a) Affirming a child's sex is not abuse
In administering, enforcing, or awarding funds under this part or part B, including under section 477, the Secretary shall not treat, and shall ensure that no recipient or subrecipient uses funds awarded under such provisions to treat, affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent as child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to a child’s health, safety, or welfare, or as an indication of parental unfitness or incapacity.
(b) Condition on receipt of funds; rights protected
As a condition of receiving funds, including any grants, subgrants, or other allocations, under this part or part B, including under section 477, a covered entity shall protect the following rights and shall not discriminate or take an adverse State action against an individual because such individual exercises, has exercised, or intends to exercise any such right:
(1)
A parent or legal guardian has the right to affirm a child's sex, including the right for the child not to be subjected by any covered entity, even if the child is in the legal or physical custody of the covered entity, to—
(A)
the provision, facilitation, funding, authorization, or permission of any sex-rejecting intervention for the child;
(B)
the use of pronouns or titles that do not correspond to the child's sex, without the express written consent of such parent or legal guardian; or
(C)
if the child is 4 years of age or older, being permitted or assigned the use of sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other area in which the child would be in a state of undress, with individuals of the opposite sex.
(2)
A parent or legal guardian has the right not to be required to consent to the child being subjected to any of the actions described in subparagraph (A), (B), or (C) of paragraph (1) as a condition of custody or return of the child, or visitation, communication, or reunification with the child.
(3)
A parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent has a right to be free from discrimination or adverse State action for affirming or intending to affirm a child’s sex.
(4)
A child has the right not to be subjected by any covered entity, even if the child is in the legal or physical custody of the covered entity, to any sex-rejecting intervention.
(c) Scope of application
For purposes of the restrictions on the use of awards under this part or part B, including under section 477, if any covered entity receives funds under either such part or section, directly or as a recipient of a subgrant, contract, or other allocation, the requirements and prohibitions of such restrictions shall apply to all of the operations, divisions, facilities, and programs of that covered entity, regardless of whether the specific operation, division, facility, or program that engages in the conduct described in such restrictions itself received such funds.
Sec. 205. Amendment to section 478 of the Social Security Act
Section 478 of the Social Security Act (42 U.S.C. 678) is amended—
(1)
by striking Nothing in this part
and inserting the following:
(a) In general
Nothing in this part; and
(2)
by adding at the end the following:
(b) Compliance with Yaeli Martinez Child Protection Act
Notwithstanding subsection (a), as a condition of receiving payments under this part, a State shall ensure that determinations concerning the health, safety, and best interests of a child comply with the requirements of, and the amendments made by, the Yaeli Martinez Child Protection Act.
Title III Amendments to the full faith and credit for child custody determinations
Sec. 301. Full faith and credit for child custody determinations
Section 1738A of title 28, United States Code, is amended—
(1)
in subsection (a), by striking subsections (f), (g), and (h)
and inserting subsections (g) through (j)
;
(2)
in subsection (b)—
(A)
by redesignating paragraphs (8) and (9) as paragraphs (17) and (18), respectively;
(B)
by redesignating paragraphs (5), (6), and (7) as paragraphs (11), (12), and (13), respectively;
(C)
by redesignating paragraph (4) as paragraph (9);
(D)
by redesignating paragraphs (1), (2), and (3) as paragraphs (3), (4), and (5), respectively;
(E)
by inserting before paragraph (3), as so redesignated, the following:
(1)
abuse, neglect, mistreatment, abandonment, endangerment, parental unfitness or incapacity, and any other similar claim relating to the health, safety, or welfare of the child, however characterized under the law of the State asserting jurisdiction shall not be construed to include affirming a child’s sex;
(2)
affirming a child’s sex—
(A)
means referring to and raising a child, or intending to refer to or raise a child, in accordance with his or her sex, including refusing to consent to sex-rejecting interventions for the child; and
(B)
shall not be construed as contrary to the best interest of the child or contrary to the child’s safety, health, well-being, or welfare;;
(F)
by inserting after paragraph (5), as so redesignated, the following:
(6)
disorder of sex development—
(A)
means a congenital condition involving atypical chromosome complement or structure or atypical development of sex chromosomes, gonads, internal genital ducts, or external genitalia, including disorders of sex hormone synthesis or action; and
(B)
does not include psychological or behavioral conditions or typical male or female sex development with distress regarding sexed anatomy;
(7)
female means an individual who naturally has, had, will have, or would have but for a disorder of sex development or intentional or unintentional disruption, the reproductive system that produces, transports, and utilizes the large gamete (commonly known as
ova) for fertilization;(8)
foreign State means a State that is not the home State;;
(G)
by inserting after paragraph (9), as so redesignated, the following:
(10)
male means an individual who naturally has, had, will have, or would have but for a disorder of sex development or intentional or unintentional disruption, the reproductive system that produces, transports, and utilizes the small gamete (commonly known as
sperm) for fertilization;;
(H)
by inserting after paragraph (13), as so redesignated, the following:
(14)
sex means a child’s immutable biological sex, either male or female;
(15)
sex-rejecting intervention—
(A)
means a psychological, medical, or surgical intervention that is intended to promote, endorse, or enable a child’s rejection of his or her sex, to promote, endorse, or enable a child to adopt an appearance that does not align with his or her sex, or to intentionally change the body of a child, including the child’s external appearance or biological functions, to no longer correspond to his or her sex, including—
(i)
intentionally delaying, halting, or disrupting the natural development of the child’s body, including the onset or progression of puberty, so that it does not develop or halts developing to correspond to the child’s sex, including the use of puberty blocking drugs, such as gonadotropin releasing hormone agonists;
(ii)
prescribing, administering, or dispensing to the child androgen blockers or sex hormones such as estrogen, progesterone, or testosterone;
(iii)
prescribing or performing any surgical procedure that attempts to transform the physical appearance or that attempts to alter or remove the tissues, cavities, bone, cartilage, or organs of a child;
(iv)
using pronouns or titles that do not align with the child’s sex;
(v)
providing compression materials or garments that are designed to constrict female breasts or that flatten or tuck a male’s genitals, prosthetic breasts, genitals, or hips, or any other materials that enable a child to conceal his or her sex or to simulate the physical characteristics of the opposite sex; and
(vi)
permitting or assigning a child who is not less than 4 years of age to—
(I)
use sleeping quarters, bathrooms, locker rooms, changing rooms, or other areas in which a child may be in a state of undress that are designated for individuals of the opposite sex; or
(II)
participate in sex-separated activities designated for individuals of the opposite sex;
(B)
shall not be construed to include the treatment of a disorder of sex development; and
(C)
shall not be construed to include emergency medical care for a child, unless the medical care is for the treatment of any infection, injury, disease, or disorder that has been caused or exacerbated by the performance of an intervention described in subparagraph (A);
(16)
sex-rejecting intervention kidnapping law means a State law that permits a foreign State to take temporary or permanent jurisdiction over a child custody or visitation determination because a contestant or a child is seeking a sex-rejecting intervention or a custodial parent is affirming the child’s sex;;
(3)
in subsection (c)(2)—
(A)
in subparagraph (A), by inserting with the permission of each custodial parent
after had been the child’s home State
;
(B)
in subparagraph (B), by striking training
and inserting education
; and
(C)
in subparagraph (E), by striking subsection (d)
and inserting subsections (d) and (e)
;
(4)
by redesignating subsection (g) as subsection (j) and transferring such subsection, as so redesignated, so as to appear after subsection (h);
(5)
by redesignating subsections (d), (e), and (f) as subsections (e), (f), and (g), respectively;
(6)
by inserting before subsection (e), as so redesignated, the following:
(d)
(1)
Notwithstanding any other provision of this section, a court of a State shall not exercise jurisdiction to make a custody or visitation determination if—
(A)
(i)
the assumption of jurisdiction is based on a contestant or a child seeking a sex-rejecting intervention for the child; and
(ii)
sex-rejecting interventions are available in such State; or
(B)
the assumption of jurisdiction is based on a claim that a child has been subjected to or threatened with abuse, neglect, mistreatment, abandonment, endangerment, parental unfitness or incapacity, or any other similar claim relating to the health, safety, or welfare of the child, however characterized under the law of the State asserting jurisdiction, if such claim is based on a contestant or a child seeking a sex-rejecting intervention for the child available in the State.
(2)
For purposes of subparagraph (B) of paragraph (1)—
(A)
notwithstanding the laws of the home State or the applicable foreign State—
(i)
abuse, neglect, mistreatment, abandonment, endangerment, parental unfitness or incapacity, or any other similar claim relating to the health, safety, or welfare of the child, however characterized under the law of the State asserting jurisdiction, shall not include the refusal of a child’s parent or legal guardian to consent to or provide a sex-rejecting intervention; and
(ii)
the refusal of a child’s parent or legal guardian to consent to a sex-rejecting intervention shall not be construed as creating an unsafe environment for a child; and
(B)
a court shall not determine that a court of another State is a more appropriate forum for custody or visitation determinations if a contestant or a child is seeking sex rejecting interventions and those sex rejecting interventions are not available in the State of the court making the jurisdictional determination.
(3)
A custody or visitation determination made in violation of subparagraph (A) or (B) of paragraph (1) is not entitled to full faith and credit, enforcement, or recognition under this section by any court and shall not be given effect as a custody or visitation determination for purposes of subsections (a), (e), and (g) through (j). Any State law that purports to authorize the exercise of jurisdiction over a custody or visitation determination on a basis prohibited by subparagraph (A) or (B) of paragraph (1) is preempted and without effect.;
(7)
in subsection (e), as so redesignated, by striking the requirement of subsection (c)(1)
and inserting the requirements of subsections (c) and (d)
;
(8)
in paragraph (1) of subsection (g), as so redesignated, by inserting , unless a claim to such jurisdiction arises out of, or is related to, such State’s sex-rejecting intervention kidnapping laws
after determination
; and
(9)
by inserting after subsection (h) the following:
(i)
No court of a State with a prohibition against a sex-rejecting intervention for children shall decline to exercise jurisdiction or be determined to have declined jurisdiction to determine a modification of custody or visitation under subsection (g) or (h) if the child has been provided or is seeking a sex-rejecting intervention in another State.