Rules Office flags First Amendment issues for HB2085, committee recommends bill

Vice Chair Carter moved that House Bill 2085 be recommended as constitutional and in proper form; the committee approved the motion 5-3.

The Rules Attorney summarized that "House bill 2085 generally relates to gender transition procedures and most substantively prohibits them from being performed in our state," and specifically flagged a second-page provision that would bar medical providers from giving referrals. The attorney said that while at least one other federal circuit has upheld similar bans, Ninth Circuit authority is not settled and that a ban on referrals could implicate providers' First Amendment speech protections.

Members pressed the attorney on whether the cited cases involved minors; the attorney said some favorable decisions did involve minors and that the split in reasoning turns in part on whether referrals are considered protected speech or incidental to regulated conduct. Representative De Los Santos spoke against the bill on constitutional grounds; the committee nevertheless voted to recommend the measure to the next stage.

The Rules Office said it has notified the sponsor of the First Amendment concern. The recommendation does not nullify potential litigation or further floor action; the attorney noted the committee's analysis could change with new appellate rulings.