AN ACT relating to civil remedies and declaring an emergency.

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AN ACT relating to civil remedies and declaring an emergency. 1
WHEREAS, the American Psychological Association, the American Psychiatric 2
Association, the American Academy of Pediatrics, the American Medical Association, 3
the American Counseling Association, the American Academy of Child and Adolescent 4
Psychiatry, the American School Counselor Association, the National Association of 5
Social Workers, and every other mainstream me ntal health and medical organization in 6
the United States have determined that efforts to change an individual's sexual orientation 7
or gender identity are harmful and ineffective; and 8
WHEREAS, in 2009, the American Psychological Association Task Force on 9
Appropriate Therapeutic Responses to Sexual Orientation conducted a systematic review 10
of peer -reviewed research and concluded that sexual orientation change efforts are 11
unlikely to be successful and involve some risk of harm, including depression, 12
suicidality, and anxiety. In 2021, the American Psychological Association adopted a 13
resolution concluding that gender identity change efforts are harmful and ineffective and 14
calling for their elimination; and 15
WHEREAS, the scientific and clinical consensus establish es that sexual orientation 16
or gender identity change efforts pose serious risks of harm to patients, including 17
depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, 18
substance abuse, stress, self-blame, decreased self-esteem, feelings of anger and betrayal, 19
loss of religious faith, alienation from family, problems in sexual and emotional intimacy, 20
sexual dysfunction, high -risk sexual behaviors, feelings of being dehumanized, and a 21
sense of having wasted time and resources; and 22
WHEREAS, the psychological harms caused by sexual orientation or gender 23
identity change efforts often do not manifest until years or decades after the conduct 24
occurred. Survivors frequently do not recognize their experience as conversion therapy, 25
initially fail to recognize such treatment as harmful, fail to connect their psychological 26
injuries to the treatment until much later in life, or are deterred from coming forward by 27
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shame instilled by the treatment itself; and 1
WHEREAS, the dynamics of the therapeutic relationship, including the trust placed 2
in mental health providers, the age and vulnerability of patients, the authority exercised 3
by providers, and the shame and internalized stigma resulting from such treatment, create 4
barriers to timely disclosure and recognition of harm similar to those recognized by this 5
Commonwealth in the context of childhood sexual abuse; and 6
WHEREAS, the existing statute of limitations for professional negligence does not 7
adequately account for the delayed recognition of psych ological injury that is 8
characteristic of harm caused by sexual orientation or gender identity change efforts; and 9
WHEREAS, psychological harm results from efforts to direct a patient toward a 10
predetermined outcome as to the patient's sexual orientation or gender identity, regardless 11
of the nature of that predetermined outcome; and 12
WHEREAS, in cas es involving latent injuries where there is scientific consensus 13
regarding harmfulness, courts have recognized that plaintiffs may establish causation by 14
demonstrating that exposure to the harmful conduct was, in reasonable medical 15
probability, a substantial factor contributing to the risk of developing the injury or illness, 16
without requiring proof of the precise mechanism by which the harm occurred. This 17
causation framework is appropriate for claims arising from sexual orientation or gender 18
identity change efforts, given the scientific consensus regarding the harmfulness of such 19
efforts and the latent nature of the resulting psychological injuries; and 20
WHEREAS, the Kentucky General Assembly intends to provide support to 21
individuals who have suffered harm a s a result of sexual orientation or gender identity 22
change efforts by licensed mental health providers with adequate time to seek civil 23
remedies for the harms they have suffered; 24
NOW, THEREFORE, 25
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 26
SECTION 1. A NEW SECTION OF KRS CHAPTER 411 IS CREATED TO 27
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READ AS FOLLOWS: 1
As used in Sections 1 to 4 of this Act: 2
(1) "Mental health professional" means any of the following: 3
(a) A physician licensed under KRS Chapter 311 or a medical officer of the 4
government of the United States engaged in conducting mental health 5
services; 6
(b) A psychiatrist licensed under KRS Chapter 311 or a medical officer of the 7
government of the United States engaged in conducting mental health 8
services; 9
(c) A psychologist, psychological practitioner, certified psychologist, or 10
psychological associate licensed under KRS Chapter 319; 11
(d) A psychiatr ic advanced practice registered nurse, or a certified nurse 12
practitioner or clinical nurse specialist with a psychiatric or mental health 13
population focus who is licensed under KRS Chapter 314 to engage in 14
advanced practice nursing; 15
(e) A licensed clinical social worker or a certified social worker licensed under 16
KRS Chapter 335; 17
(f) A marriage and family therapist licensed under KRS Chapter 335 or a 18
marriage and family therapy associate holding a permit under KRS Chapter 19
335; 20
(g) A licensed professional cl inical counselor or a licensed professional 21
counselor associate credentialed under KRS Chapter 335; 22
(h) A licensed pastoral counselor licensed under KRS Chapter 335; 23
(i) A licensed professional art therapist certified under KRS Chapter 309; 24
(j) A physician assistant licensed under KRS Chapter 311 engaged in providing 25
mental health services; and 26
(k) A licensed clinical alcohol and drug counselor, licensed clinical alcohol and 27
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drug counselor associate, or certified alcohol and drug counselor licensed 1
or certified under KRS Chapter 309; and 2
(2) "Sexual orientation or gender identity change efforts": 3
(a) Means any practices by a mental health professional that seek to direct a 4
patient toward a predetermined sexual orientation or gender identity 5
outcome, including efforts to direct a patient toward a particular: 6
1. Sexual orientation by eliminating, reducing, or discouraging sexual or 7
romantic attractions or feelings toward individuals of a particular sex; 8
2. Sexual orientation by creating, promoting, or encour aging sexual or 9
romantic attractions or feelings toward individuals of a particular sex; 10
or 11
3. Gender identity by eliminating, reducing, discouraging, or promoting 12
any particular gender identity or gender expression; and 13
(b) Does not include: 14
1. Counseling or therapy that provides assistance to a person undergoing 15
gender transition; 16
2. Nondirective psychotherapies that facilitate a person's coping, identity 17
exploration, and self -understanding without seeking to achieve any 18
particular outcome regarding sexual orientation or gender identity; 19
3. Counseling or therapy that is neutral with re spect to sexual 20
orientation and gender identity and that does not seek to direct a 21
person toward a predetermined outcome; or 22
4. Age-appropriate interventions to address unlawful conduct or unsafe 23
practices that do not seek to direct a person toward any par ticular 24
sexual orientation or gender identity. 25
SECTION 2. A NEW SECTION OF KRS CHAPTER 411 IS CREATED TO 26
READ AS FOLLOWS: 27
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(1) A civil action may be maintained under this section for damages arising from 1
sexual orientation or gender identity change efforts against any: 2
(a) Mental health professional; 3
(b) Person or entity that employed, supervised, or otherwise exercised authority 4
over a mental health professional in which the person or entity: 5
1. Knew or had reason to know that the mental health professional 6
engaged in or was likely to engage in sexual orientation or gender 7
identity change efforts; and 8
2. Failed to take reasonable steps to prevent the mental health 9
professional from engaging in sexual orientation or gender identity 10
change efforts; or 11
(c) Person or entity for the negligent hiring, supervision, or retention of a 12
mental health professional who engaged in sexual orientation or gender 13
identity change efforts. 14
(2) The action may be filed in the Circuit Court for t he county where the alleged 15
harm occurred or the county where the plaintiff resides. 16
(3) An individual found liable under this section shall be jointly and severally liable 17
with each other person, if any, found liable under this section for the damages 18
arising from the same harm. 19
(4) In an action under this section, the plaintiff may recover damages including but 20
not limited to: 21
(a) Economic damages, including medical expenses, mental health treatment 22
costs, lost earnings, and other pecuniary losses; 23
(b) Noneconomic damages, including pain and suffering, emotional distress, 24
and loss of enjoyment of life; 25
(c) Punitive or exemplary damages, where the defendant's conduct was willful, 26
wanton, oppressive, fraudulent, or malicious; and 27
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(d) Reasonable attorney's fees and costs. 1
(5) (a) A cause of action under this section shall survive the death of the person 2
who was subjected to sexual orientation or gender identity change efforts 3
and may be maintained by the person's personal representative or estate. 4
(b) The pers on's personal representative or estate may recover all damages 5
available under subsection (4) of this section, including punitive or 6
exemplary damages where the requirements of subsection (4)(c) of this 7
section are met. 8
SECTION 3. A NEW SECTION OF KRS CHAPTER 411 IS CREATED TO 9
READ AS FOLLOWS: 10
(1) In an action under Section 2 of this Act, causation may be established as follows: 11
(a) 1. General causation may be established by expert testimony, scientific 12
literature, or oth er evidence demonstrating that sexual orientation or 13
gender identity change efforts are capable of causing the type of 14
psychological injury or illness suffered by the plaintiff. 15
2. Expert testimony may address: 16
a. The scientific and clinical consensus rega rding the harmfulness 17
of sexual orientation or gender identity change efforts; 18
b. The types of psychological injuries commonly caused by sexual 19
orientation or gender identity change efforts; 20
c. The typical latency period between sexual orientation or gender 21
identity change efforts and the manifestation or recognition of 22
psychological harm; and 23
d. The reasons why survivors of sexual orientation or gender 24
identity change efforts commonly experience delayed recognition 25
of harm, including repression, shame, and the dynamics of the 26
therapeutic relationship; 27
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(b) 1. Once general causation is established as described in paragraph (a) of 1
this subsection, the plaintiff may establish specific causation by 2
demonstrating that the sexual orientation or gender identity change 3
efforts were, in reasonable medical probability, a substantial factor in 4
causing the plaintiff's psychological injury or illness. 5
2. The existence of other potential contributing factors does not preclude 6
a finding of causation if the trier of fact determines that the sexual 7
orientation or gender identity change efforts substantiall y contributed 8
to the harm. 9
3. The plaintiff shall not be required to prove that the sexual orientation 10
or gender identity change efforts were the sole cause of the harm, to 11
the exclusion of all other potential contributing factors; and 12
(c) The plaintiff shall not be required to prove the precise mechanism by which 13
the harm occurred in order to establish causation. 14
(2) In determining whether sexual orientation or gender identity change efforts were 15
a substantial factor in causing the plaintiff's injury, the trier of fact may 16
consider: 17
(a) The nature, duration, and intensity of the efforts; 18
(b) The age and vulnerability of the plaintiff; 19
(c) The relationship between the plaintiff and the mental health professional; 20
(d) The temporal relationship between the efforts and the onset or exacerbation 21
of symptoms; and 22
(e) Any other relevant factors. 23
SECTION 4. A NEW SECTION OF KRS CHAPTER 411 IS CREATED TO 24
READ AS FOLLOWS: 25
(1) Sections 1 to 4 of this Act shall not be construed to lim it or restrict any other 26
statutory or common law cause of action or remedy available to any person 27
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injured by sexual orientation or gender identity change efforts. 1
(2) It is the intent of the General Assembly that Sections 1 to 4 of this Act shall be 2
interpreted broadly to effectuate its remedial purpose of providing civil remedies 3
to persons harmed by sexual orientation or gender identity change efforts. 4
(3) Sections 1 to 4 of this Act apply to any action commenced on or after the effective 5
date of this Ac t, provided that the action was not barred by the applicable statute 6
of limitations in effect prior to the effective date of this Act. 7
SECTION 5. A NEW SECTION OF KRS CHAPTER 413 IS CREATED TO 8
READ AS FOLLOWS: 9
(1) Notwithstanding any other law to the contrary, the time for commencement of a 10
civil action for recovery of damages suffered as a result of sexual orientation or 11
gender identity change efforts as described in Sections 1 to 4 of this Act is the 12
later of the following: 13
(a) Within twenty -two (22) years of the date the plaintiff attains the age of 14
majority, if the plaintiff was under eighteen (18) years of age at the time of 15
the conduct; 16
(b) Within ten (10) years of the date of the last treatment session in which 17
sexual orientation or gender identity change efforts occurred, if the plaintiff 18
was eighteen (18) years of age or older at the time of the conduct; or 19
(c) Within five (5) years of the date the plaintiff discovers or reasonably should 20
have discovered that psych ological injury or illness occurring after the 21
conduct was caused by sexual orientation or gender identity change efforts. 22
(2) For purposes of applying the discovery provisions of this section: 23
(a) The plaintiff shall be deemed to have discovered that psychological injury or 24
illness was caused by sexual orientation or gender identity change efforts 25
when the plaintiff first knew or reasonably should have known that the 26
psychological injury or illness was caused, in whole or in part, by sexual 27
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orientation or gender identity change efforts; 1
(b) The plaintiff need not have knowledge of the full extent of the injury, the 2
specific diagnosis, or that the conduct was wrongful or actionable; 3
(c) Knowledge that the plaintiff received treatment from a mental health 4
professional, by itself, does not constitute discovery; and 5
(d) The discovery period commences only when the plaintiff knew or 6
reasonably should have known that psychological injury or il lness generally 7
was caused by sexual orientation or gender identity change efforts. 8
Evidence that the plaintiff was aware of one (1) psychological symptom or 9
condition potentially caused by those efforts, or had made a connection 10
between the efforts and an y specific symptom, does not establish discovery 11
of other injuries or the full scope of harm. 12
(3) This section shall not be construed to limit the application of any other provision 13
of law that extends the time for commencement of an action as described in 14
Section 2 of this Act. 15
(4) (a) Notwithstanding KRS 411.140, if the person who was subjected to sexual 16
orientation or gender identity change efforts dies before the expiration of 17
the applicable statute of limitations period under subsection (1) of this 18
section, the personal representative or estate shall have the later of: 19
1. The time remaining under subsection (1) of this section; or 20
2. One (1) year from the date of qualification of the personal 21
representative. 22
(b) For purposes of applying the discovery pr ovisions of this section, discovery 23
by the personal representative or estate of the causal connection between 24
the decedent's death or psychological injury or illness and sexual 25
orientation or gender identity change efforts shall be treated as discovery by 26
the plaintiff. 27
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Section 6. KRS 413.140 is amended to read as follows: 1
(1) The following actions shall be commenced within one (1) year after the cause of 2
action accrued: 3
(a) An action for an injury to the person of the pl aintiff, or of her husband, his 4
wife, child, ward, apprentice, or servant; 5
(b) An action for injuries to persons, cattle, or other livestock by railroads or 6
other corporations, with the exception of hospitals licensed pursuant to KRS 7
Chapter 216; 8
(c) An ac tion for malicious prosecution, conspiracy, arrest, seduction, criminal 9
conversation, or breach of promise of marriage; 10
(d) An action for libel or slander; 11
(e) An action against a physician, surgeon, dentist, or hospital licensed pursuant 12
to KRS Chapter 21 6, for negligence or malpractice , except as provided in 13
Sections 4 and 5 of this Act; 14
(f) A civil action, arising out of any act or omission in rendering, or failing to 15
render, professional services for others, whether brought in tort or contract, 16
against a real estate appraiser holding a certificate or license issued under 17
KRS Chapter 324A or a real estate broker or sales associate holding a license 18
issued under KRS Chapter 324; 19
(g) An action for the escape of a prisoner, arrested or imprisoned on civil process; 20
(h) An action for the recovery of usury paid for the loan or forbearance of money 21
or other thing, against the loaner or forbearer or assignee of either; 22
(i) An action for the recovery of stolen property, by the owner thereof against 23
any person having the same in his possession; 24
(j) An action for the recovery of damages or the value of stolen property, against 25
the thief or any accessory; 26
(k) An action arising out of a detention facility disciplinary proceeding, whether 27
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based upon state or federal law; 1
(l) An action for damages arising out of a deficiency, defect, omission, error, or 2
miscalculation in any survey or plat, whether brought in tort or contract, 3
against a licensed professional land surveyor holding a license under KRS 4
Chapter 322; 5
(m) An action for violating KRS 311.782; and 6
(n) An action for violating KRS 311.731. 7
(2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, 8
the cause of action shall be deemed to accrue at the time the injury is first 9
discovered or in the exercise of reasonable care should have been discovered; 10
provided that such action shall be commenced within five (5) years from the date on 11
which the alleged negligent act or omission is said to have occurred. 12
(3) In respect to the action refe rred to in paragraph (f) or (l) of subsection (1) of this 13
section, the cause of action shall be deemed to accrue within one (1) year from the 14
date of the occurrence or from the date when the cause of action was, or reasonably 15
should have been, discovered by the party injured. 16
(4) In respect to the action referred to in paragraph (h) of subsection (1) of this section, 17
the cause of action shall be deemed to accrue at the time of payment. This limitation 18
shall apply to all payments made on all demands, whether evidenced by writing or 19
existing only in parol. 20
(5) In respect to the action referred to in paragraph (i) of subsection (1) of this section, 21
the cause of action shall be deemed to accrue at the time the property is found by its 22
owner. 23
(6) In respect to the action referred to in p aragraph (j) of subsection (1) of this section, 24
the cause of action shall be deemed to accrue at the time of discovery of the 25
liability. 26
(7) In respect to the action referred to in paragraph (k) of subsection (1) of this section, 27
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the cause of action shall be deemed to accrue on the date an appeal of the 1
disciplinary proceeding is decided by the institutional warden. 2
(8) In respect to the action referred to in subsection (1)(m) and (n) of this section, the 3
cause of action shall be deemed to accrue after the performance or inducement or 4
attempt to perform or induce the abortion. 5
Section 7. If any provision of this Act or the application thereof to any person 6
or circumstance is held invalid, the invalidity shall not affect ot her provisions or 7
applications of the Act that can be given effect without the invalid provision or 8
application, and to this end the provisions of this Act are severable. 9
Section 8. Whereas Kentucky has a paramount inter est in protecting its 10
population from the harmful effects of sexual orientation or gender identity change 11
efforts, an emergency is declared to exist, and this Act takes effect upon its passage and 12
approval by the Governor or upon its otherwise becoming a law. 13