Bill Text: NY A07687 | 2023-2024 | General Assembly | Amended


Bill Title: Declares that a law authorizing a child to be removed from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming care is against the public policy of this state; relates to forum in domestic relations cases.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Introduced) 2024-04-29 - print number 7687a [A07687 Detail]

Download: New_York-2023-A07687-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         7687--A

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      June 5, 2023
                                       ___________

        Introduced  by  M. of A. BRONSON, SIMON -- read once and referred to the
          Committee on Judiciary -- recommitted to the Committee on Judiciary in
          accordance with Assembly Rule 3, sec. 2 -- committee discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee

        AN ACT to amend the family court act, the domestic  relations  law,  the
          criminal  procedure law, the executive law, the civil practice law and
          rules, the education  law  and  the  insurance  law,  in  relation  to
          gender-affirming care; to repeal section 570.19 of the criminal proce-
          dure  law  relating  to  the  extradition  of  gender-affirming   care
          providers,  seekers, parents, guardians, and helpers; to repeal subdi-
          vision 3-b of section 140.10 of the criminal procedure law relating to
          the arrest of any person for performing or aiding in  the  performance
          of gender-affirming care within this state; to repeal section 837-x of
          the  executive  law  relating to cooperation with certain out-of-state
          investigations; and to repeal subdivision (h) of section 3119  of  the
          civil  practice  law  and  rules  relating to subpoenas   related   to
          gender-affirming care

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subdivision  1 of section 659 of the family court act, as
     2  added by chapter 101 of the laws of 2024, is amended to read as follows:
     3    1. A law that authorizes a child to be removed from  their  parent  or
     4  guardian based on the parent or guardian allowing their child to receive
     5  gender-affirming  care  is  against  the public policy of this state and
     6  shall not be enforced or applied in a case pending in a  court  in  this
     7  state.
     8    §  2.  Section 76 of the domestic relations law is amended by adding a
     9  new subdivision 4 to read as follows:
    10    4. The presence of a child in this state for the purpose of  obtaining
    11  gender-affirming  care, as defined by section sixty-five hundred thirty-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11693-05-4

        A. 7687--A                          2

     1  one-b of the education law, is sufficient to meet  the  requirements  of
     2  paragraph (b) of subdivision one of this section.
     3    §  3.  Subdivision 1 of section 76-c of the domestic relations law, as
     4  added by chapter 386 of the laws of 2001, is amended to read as follows:
     5    1. A court of this state has temporary emergency jurisdiction  if  the
     6  child is present in this state and:
     7    (a) the child has been abandoned [or];
     8    (b) it is necessary in an emergency to protect the child, a sibling or
     9  parent of the child; or
    10    (c)  the  child  is  present  in this state because the child has been
    11  unable to obtain gender-affirming care, as defined by section sixty-five
    12  hundred thirty-one-b of the education law.
    13    § 4. Subdivisions 3 and 4 of section 76-f of  the  domestic  relations
    14  law  are  renumbered  subdivisions  4  and 5, and a new subdivision 3 is
    15  added to read as follows:
    16    3. In a case where the provision of gender-affirming care to the child
    17  is at issue, a court of this state shall not determine  that  it  is  an
    18  inconvenient  forum  and  must  find that it is a more appropriate forum
    19  where the law or policy of the other state that  may  take  jurisdiction
    20  limits the ability of a parent to obtain gender-affirming care for their
    21  child.    For  the purposes of this section, "gender-affirming care" has
    22  the same meaning as defined by section sixty-five  hundred  thirty-one-b
    23  of the education law.
    24    §  5.  Subdivision 4 of section 76-g of the domestic relations law, as
    25  added by chapter 386 of the laws of 2001, is amended to read as follows:
    26    4. In making a determination under this section,  a  court  shall  not
    27  consider  as  a factor weighing against the petitioner any taking of the
    28  child, or retention of the child after a visit or other temporary relin-
    29  quishment of physical custody, from the person who has legal custody, if
    30  there is evidence that the taking or  retention  of  the  child  was  to
    31  protect  the  petitioner  from domestic violence or the child or sibling
    32  from mistreatment or abuse, or for the purposes of obtaining  gender-af-
    33  firming  care,  as defined by section sixty-five hundred thirty-one-b of
    34  the education law, for the child and the law  or  policy  of  the  other
    35  state limits the ability of a parent to obtain gender-affirming care for
    36  their child.
    37    §  6.  Section 77-l of the domestic relations law, as added by chapter
    38  386 of the laws of 2001, is amended to read as follows:
    39    § 77-l. 1. Recognition and enforcement. A court of  this  state  shall
    40  accord  full  faith  and  credit to an order issued by another state and
    41  consistent with this article which enforces  a  child  custody  determi-
    42  nation  by  a  court of another state unless the order has been vacated,
    43  stayed, or modified by a court having jurisdiction to do so under  title
    44  two  of  this  article, unless recognition and enforcement would violate
    45  subdivision one-c of section  two  hundred  forty  of  this  chapter  or
    46  section one thousand eighty-five of the family court act.
    47    2.  (a)  A  law  that authorizes a state agency to remove a child from
    48  their parent or guardian based on the parent or guardian allowing  their
    49  child  to  receive gender-affirming care is against the public policy of
    50  this state and shall not be enforced or applied in a case pending  in  a
    51  court in this state.
    52    (b) For the purpose of this subdivision, "gender-affirming care" shall
    53  have  the same meaning as provided by section sixty-five hundred thirty-
    54  one-b of the education law.

        A. 7687--A                          3

     1    § 7.  Subdivision 1 of section 570.17 of the criminal  procedure  law,
     2  as  added  by  chapter  138  of  the laws of 2023, is amended to read as
     3  follows:
     4    1.  For  purposes  of this section, the following terms shall have the
     5  following meanings:
     6    (a)  "Reproductive  health  services"  shall  mean  and  include   all
     7  services,  care, or products of a medical, surgical, psychiatric, thera-
     8  peutic, diagnostic,  mental  health,  behavioral  health,  preventative,
     9  rehabilitative,  supportive,  consultative,  referral,  prescribing,  or
    10  dispensing nature relating to the human reproductive system provided  in
    11  accordance  with  the  constitution  and the laws of this state, whether
    12  provided in person or by means of  telehealth  or  telehealth  services,
    13  which  includes,  but is not limited to, all services, care and products
    14  relating to pregnancy, assisted reproduction, contraception, miscarriage
    15  management or the termination of a pregnancy,  and  self-managed  termi-
    16  nations.
    17    (b) "Gender-affirming care" shall mean any type of care provided to an
    18  individual  to  affirm  their  gender  identity  or  gender  expression;
    19  provided that surgical interventions on minors with variations in  their
    20  sex  characteristics that are not sought and initiated by the individual
    21  patient are not gender-affirming care.
    22    (c) "Legally protected health activity" shall  mean  and  include  the
    23  following  acts and omissions by providers and facilitators of reproduc-
    24  tive health services and gender-affirming care, to the extent  they  are
    25  not in violation of the constitution or the laws of this state, provided
    26  that such provider is physically present in the state:
    27    (i)  the  exercise  or  attempted  exercise by any person of rights to
    28  reproductive health services and gender-affirming care as secured by the
    29  constitution or laws of this state or the provision of insurance  cover-
    30  age for such services or care; and
    31    (ii) any act or omission undertaken to aid or encourage, or attempt to
    32  aid  or  encourage,  any person in the exercise or attempted exercise of
    33  rights to reproductive health  services  and  gender-affirming  care  as
    34  secured  by the constitution or laws of this state, or to provide insur-
    35  ance coverage for such services or care;  provided,  however,  that  the
    36  provision  of such reproductive health services or gender-affirming care
    37  by a person duly licensed under the laws of this  state  and  physically
    38  present  in  this state and the provision of insurance coverage for such
    39  services or care shall be a legally protected  health  activity  if  the
    40  service or care is permitted under the laws of this state, regardless of
    41  the patient's location.
    42    § 8. Section 570.19 of the criminal procedure law is REPEALED.
    43    §  9.  Subdivision 3-b of section 140.10 of the criminal procedure law
    44  is REPEALED.
    45    § 10. Subdivision 1 and paragraph (b)  of  subdivision  2  of  section
    46  837-x of the executive law, subdivision 1 as added by chapter 138 of the
    47  laws of 2023 and paragraph (b) of subdivision 2 as amended by chapter 89
    48  of the laws of 2024, are amended to read as follows:
    49    1.  For  purposes  of this section, the following terms shall have the
    50  following meanings:
    51    (a) "Reproductive health services" shall  have  the  same  meaning  as
    52  paragraph  (a)  of  subdivision  one  of  section 570.17 of the criminal
    53  procedure law; [and]
    54    (b) "Gender-affirming care" shall have the same meaning  as  paragraph
    55  (b)  of subdivision one of section 570.17 of the criminal procedure law;
    56  and

        A. 7687--A                          4

     1    (c) "Legally protected health activity" shall have the same meaning as
     2  paragraph [(b)] (c) of subdivision one of section 570.17 of the criminal
     3  procedure law.
     4    (b)  Nothing  in  this section shall prohibit the investigation of any
     5  reproductive  health  services  or  gender-affirming  care  rendered  in
     6  violation of the laws of this state, provided that no information relat-
     7  ing  to  any medical procedure performed on a specific individual may be
     8  shared with an out-of-state agency or any other individual.  Nothing  in
     9  this  section  shall  prohibit  compliance  with  a  valid, court-issued
    10  subpoena or warrant which does not relate to a  law  seeking  to  impose
    11  civil  or  criminal  liability  or  professional sanctions for a legally
    12  protected health activity, or in response to the written  request  of  a
    13  person who is the subject of such an investigation or proceeding, to the
    14  extent necessary, in each case, to fulfill such request.
    15    § 11. Section 837-x of the executive law, as amended by chapter 101 of
    16  the laws of 2024, is REPEALED.
    17    §  12.  Subdivision  (h) of section 3119 of the civil practice law and
    18  rules is REPEALED.
    19    § 13. Subdivision (g) of section 3119 of the civil  practice  law  and
    20  rules,  as  amended  by  chapter 138 of the laws of 2023, paragraph 1 as
    21  amended by chapter 89 of the  laws  of  2024,  is  amended  to  read  as
    22  follows:
    23    (g)  (1)  Out-of-state  proceedings regarding legally protected health
    24  activities. Notwithstanding any other provisions of this section or  any
    25  other  law,  no  court or county clerk shall issue a subpoena under this
    26  section in connection with an out-of-state proceeding  relating  to  any
    27  legally  protected  health activity which occurred in this state, unless
    28  such out-of-state proceeding (i) sounds in tort  or  contract,  (ii)  is
    29  actionable,  in  an equivalent or similar manner, under the laws of this
    30  state, and (iii) was brought by the patient  who  received  reproductive
    31  health  services  as  defined  in  paragraph  (a)  of subdivision one of
    32  section 570.17 of the criminal procedure law or gender-affirming care as
    33  defined in paragraph (b) of subdivision one of  section  570.17  of  the
    34  criminal  procedure  law, or the patient's legal representative, so long
    35  as the patient gives express  consent  unless  express  consent  is  not
    36  feasible due to patient injury or death.
    37    (2)  For  purposes  of  this subdivision, the terms "legally protected
    38  health activity",  "gender-affirming  care",  and  "reproductive  health
    39  services"  shall have the same meanings as defined in subdivision one of
    40  section 570.17 of the criminal procedure law.
    41    § 14. Subdivision (e) of section 3102 of the civil  practice  law  and
    42  rules,  as  separately  amended  by  chapter 138 of the laws of 2023 and
    43  chapter 101 of the laws of 2024, is amended to read as follows:
    44    (e) Action pending in another  jurisdiction.  Except  as  provided  in
    45  section  three thousand one hundred nineteen of this article, when under
    46  any mandate, writ or commission issued out of any court of record in any
    47  other state, territory, district or foreign  jurisdiction,  or  whenever
    48  upon  notice  or  agreement,  it  is required to take the testimony of a
    49  witness in the state, [he or she]  such  witness  may  be  compelled  to
    50  appear  and testify in the same manner and by the same process as may be
    51  employed for the purpose of taking testimony in actions pending  in  the
    52  state.  The  supreme  court or a county court shall make any appropriate
    53  order in aid of taking such a deposition; provided that no order may  be
    54  issued  under this section in connection with an out-of-state proceeding
    55  relating to any legally protected health activity, as defined  in  para-
    56  graph  [(b)]  (c)  of  subdivision one of section 570.17 of the criminal

        A. 7687--A                          5

     1  procedure law [or gender-affirming care, as defined in paragraph (c)  of
     2  subdivision  one  of  section  sixty-five    hundred thirty-one-b of the
     3  education law,] which occurred in this state, unless  such  out-of-state
     4  proceeding  (1)  sounds  in  tort  or contract, (2) is actionable, in an
     5  equivalent or similar manner, under the laws of this state, and (3)  was
     6  brought  by  the  patient  who  received reproductive health services or
     7  gender-affirming care, or the patient's legal representative.
     8    § 15. Section 4550 of the civil practice law and rules,  as  added  by
     9  chapter 138 of the laws of 2023, is amended to read as follows:
    10    §  4550. Admissibility of evidence related to legally protected health
    11  activity. Evidence relating to the involvement of a  party  engaging  in
    12  one  or  more legally protected health activity, as defined in paragraph
    13  [(b)] (c) of subdivision one of section 570.17 of the criminal procedure
    14  law, relating to providing reproductive health  services  or  gender-af-
    15  firming  care  to persons not physically present in this state shall not
    16  be offered against such party as evidence that such party has engaged in
    17  any wrongdoing, whether civil, criminal, professional, or  otherwise  by
    18  virtue  of such recipients of such services not being physically present
    19  in this state. Nothing in this section shall prevent a party from offer-
    20  ing such evidence in a proceeding that (i) sounds in tort  or  contract,
    21  (ii)  is  actionable, in an equivalent or similar manner, under the laws
    22  of this state, and (iii) was brought by the patient who received  repro-
    23  ductive health services or gender-affirming care, or the patient's legal
    24  representative.
    25    § 16. Subdivision 1 of section 6510 of the education law is amended by
    26  adding a new paragraph b-1 to read as follows:
    27     b-1.  Misconduct.  The department shall not charge a licensee, acting
    28  within their scope of practice, with misconduct as  defined  in  section
    29  sixty-five hundred nine of this subarticle, or cause a complaint made by
    30  any  person  to  the  department to be investigated beyond a preliminary
    31  review, solely on the basis that such licensee  performed,  recommended,
    32  or provided any reproductive health services or gender-affirming care as
    33  defined  in  section  sixty-five hundred nine-f of this subarticle for a
    34  patient who resides in a state wherein the  performance,  recommendation
    35  or  provision  of  such reproductive health services or gender-affirming
    36  care is illegal. The preliminary review shall determine if  such  report
    37  reasonably  appears  to reflect conduct warranting further investigation
    38  pursuant to this paragraph.
    39    § 17. Subdivision 2 of section 6531-b of the education law,  as  sepa-
    40  rately  amended  by chapters 138 and 143 of the laws of 2023, is amended
    41  to read as follows:
    42    2. The performance, recommendation, or provision of  any  reproductive
    43  health  services or gender-affirming care, as defined in subdivision one
    44  of this section, or any legally protected health activity as defined  in
    45  paragraph [(b)] (c) of subdivision one of section 570.17 of the criminal
    46  procedure  law,  by a health care practitioner acting within their scope
    47  of practice, for a patient who resides in a state wherein  the  perform-
    48  ance,  recommendation, or provision of such reproductive health services
    49  or gender-affirming care is illegal, shall not,  by  itself,  constitute
    50  professional  misconduct under this title, or title two-A of article two
    51  of the public health law, or any other law, rule or regulation governing
    52  the licensure, certification, or authorization of such practitioner, nor
    53  shall any license, certification or authorization of a health care prac-
    54  titioner be revoked, suspended, or annulled or otherwise subject to  any
    55  other  penalty  or  discipline provided in the public health law or this
    56  title solely on the basis that such health care practitioner  performed,

        A. 7687--A                          6

     1  recommended,  or  provided  any  such  reproductive  health  services or
     2  gender-affirming care for a patient who resides in a state  wherein  the
     3  performance,  recommendation,  or  provision of such reproductive health
     4  services or gender-affirming care is illegal.
     5    §  18.  The education law is amended by adding a new section 6509-f to
     6  read as follows:
     7     § 6509-f. Limited exemption from professional  misconduct;  reproduc-
     8  tive  health  services  and  gender-affirming  care.  1. As used in this
     9  section, the following terms shall have the following meanings:
    10    (a) "Reproductive health services" shall include all  services,  care,
    11  or  products  of  a  medical, surgical, psychiatric, therapeutic, mental
    12  health, behavioral  health,  diagnostic,  preventative,  rehabilitative,
    13  supportive,  counseling,  referral,  prescribing,  or  dispensing nature
    14  relating to the human reproductive system provided  in  accordance  with
    15  the  laws  of  this  state, including, but not limited to, all services,
    16  care and products relating to pregnancy, assisted reproduction,  contra-
    17  ception,  miscarriage  management  or  the  termination  of a pregnancy,
    18  including self-managed terminations.
    19    (b) "Gender-affirming care" shall mean any type of care provided to an
    20  individual  to  affirm  their  gender  identity  or  gender  expression,
    21  provided  that surgical interventions on minors with variations in their
    22  sex characteristics that are not sought and initiated by the  individual
    23  patient are not gender-affirming care.
    24    (c)  "Health care practitioner" means a person who is licensed, certi-
    25  fied, or authorized under this title  and  acting  within  their  lawful
    26  scope of practice and includes, but is not limited to persons subject to
    27  articles  one  hundred thirty-one, one hundred thirty-one-B, one hundred
    28  thirty-six, one hundred thirty-seven, one  hundred  thirty-seven-A,  one
    29  hundred  thirty-nine,  one  hundred  forty, one hundred fifty-three, one
    30  hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or one
    31  hundred sixty-three of this title or any other person  designated  as  a
    32  health care practitioner by law, rule, or regulation.
    33    2.  The  performance, recommendation, or provision of any reproductive
    34  health services or gender-affirming care as defined in  subdivision  one
    35  of  this section, or any legally protected health activity as defined in
    36  paragraph (c) of subdivision one  of  section  570.17  of  the  criminal
    37  procedure  law,  by a health care practitioner acting within their scope
    38  of practice, for a patient who resides in a state wherein  the  perform-
    39  ance,  recommendation, or provision of such reproductive health services
    40  or gender-affirming care is illegal, shall not,  by  itself,  constitute
    41  professional  misconduct  under  this  title,  or any other law, rule or
    42  regulation governing the licensure, certification, or  authorization  of
    43  such practitioner, nor shall any license, certification or authorization
    44  of  a  health  care  practitioner  be revoked, suspended, or annulled or
    45  otherwise subject to any other penalty or  discipline  provided  in  the
    46  public  health  law  or  this title solely on the basis that such health
    47  care practitioner performed, recommended, or provided any such reproduc-
    48  tive health services or gender-affirming care for a patient who  resides
    49  in a state wherein the performance, recommendation, or provision of such
    50  reproductive health services or gender-affirming care is illegal.
    51    3.  Nothing  in this section shall be construed to expand the scope of
    52  practice of any individual licensed, certified or authorized under  this
    53  title,  nor  does this section give any such individual the authority to
    54  act outside their scope of practice, as defined in this title.
    55    § 19. Subsection (a) of section 3436-a of the insurance law, as  sepa-
    56  rately amended by chapter 138 of the laws of 2023 and chapter 101 of the

        A. 7687--A                          7

     1  laws  of  2024, is amended and two new subsections (e) and (f) are added
     2  to read as follows:
     3    (a)  Every insurer that issues or renews medical malpractice insurance
     4  or professional liability insurance  covering  a  health  care  provider
     5  licensed  to  practice in this state shall be prohibited from taking any
     6  adverse action against a health care provider solely on the  basis  that
     7  the  health  care provider engages in legally protected health activity,
     8  as defined in paragraph [(b)] (c) of subdivision one of  section  570.17
     9  of  the criminal procedure law, [or gender-affirming care, as defined in
    10  paragraph (c) of subdivision one of section sixty-five  hundred  thirty-
    11  one-b  of  the  education law, that is legal in this state] with someone
    12  who is from out of the state. The superintendent is expressly authorized
    13  to interpret "legally protected health activity" as if  such  definition
    14  was  stated  within this section.  Such policy shall include health care
    15  providers who prescribe abortion medication to out-of-state patients  by
    16  means of telehealth.
    17    (e)  As used in this section, "professional liability insurance" shall
    18  mean insurance against legal liability of the insured, and against loss,
    19  damage, or expense incident to a claim of such liability arising out  of
    20  the  death  or  injury of any person due to medical, psychiatric, mental
    21  health, or other malpractice by any licensed physician assistant,  phys-
    22  ical  therapist,  physical  therapist  assistant, pharmacist, registered
    23  pharmacy technician, nurse, psychologist, psychiatrist,  social  worker,
    24  occupational  therapist,  speech-language  pathologist, or mental health
    25  practitioner.
    26    (f) As used in this section,  "health  care  provider"  shall  mean  a
    27  person who is licensed, certified, or authorized under title VIII of the
    28  education  law  and  acting  within  their  lawful scope of practice and
    29  includes, but is not limited to persons subject to article  one  hundred
    30  thirty-one,  one  hundred  thirty-one-B,  one  hundred  thirty-six,  one
    31  hundred thirty-seven, one hundred thirty-seven-A,  one  hundred  thirty-
    32  nine,  one  hundred  forty,  one hundred fifty-three, one hundred fifty-
    33  four, one hundred fifty-six,  one  hundred  fifty-nine  or  one  hundred
    34  sixty-three  of  title  eight  of  the education law or any other person
    35  designated as a health care provider by law, rule, or regulation.
    36    § 20. Severability. If any clause, sentence,  paragraph,  subdivision,
    37  section  or part of this act shall be adjudged by any court of competent
    38  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
    39  invalidate the remainder thereof, but shall be confined in its operation
    40  to the clause, sentence, paragraph, subdivision, section or part thereof
    41  directly  involved  in the controversy in which such judgment shall have
    42  been rendered. It is hereby declared to be the intent of the legislature
    43  that this act would have been enacted even if  such  invalid  provisions
    44  had not been included herein.
    45    § 21. This act shall take effect immediately.
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