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)..