What surgeries would Proposition 135 ban? Colorado hospitals won’t say.
If you are an adolescent boy going through puberty, you may develop a condition called gynecomastia.
Basically, the haywire hormones of the early teen years cause boys to develop breast tissue. The condition is generally not medically harmful, and it often goes away with time. But, in some cases, it doesn’t go away or is too embarrassing, and teens opt for breast-reduction surgery.
This presents a puzzle that Colorado hospitals either can’t answer right now or don’t want to: If Proposition 135 passes in November, would those surgeries be banned in the state?
The public debate about 135 — which prohibits gender-related surgeries for people under the age of 18 with some exceptions — has mostly focused on surgeries for minors who identify as transgender. Proponents say those are essentially the only surgeries that would be stopped under the measure.
“We were very careful with the definition to ensure that we described that as only treatment in response to a minor child’s perception of their sex or gender,” Erin Lee, one of the measure’s chief proponents, said. “So again, (for the) purpose of changing sex.”
But the text of 135 is potentially broader. The measure doesn’t clearly specify whether it applies only to transgender patients or only to surgeries related to sex change or gender transition. Instead, it says it bans surgeries “for the purpose of altering biological sex characteristics.” Critics say that is vague enough that it could apply to surgeries like those for gynecomastia or other conditions.
“The meaning of the law will be inevitably subject to interpretation,” Dr. Matthew Wynia, an internal medicine physician and a bioethicist at the University of Colorado Anschutz, wrote in an email. “Unless the statute specifically leaves these interpretations up to the medical community (which it does not), then doctors will be playing defense, which will lead many to be extremely cautious about doing any procedure that might possibly be seen by anyone as against the law.”
Hospitals won’t say which surgeries they would stop
Seeking to address the confusion, The Colorado Sun reached out to numerous hospitals asking which surgeries that they perform now would have to be stopped if 135 passes. None provided a clear answer.
Children’s Hospital Colorado operates an entire adolescent breast and chest program within its plastic and reconstructive surgery unit — which is separate from the hospital’s programs that provide care for transgender patients. The program treats boys and girls for “a variety of issues including pain and discomfort, limitations in their inability to participate in daily activities, or differences in appearance,” according to the program’s website. This includes treatment for gynecomastia.
Children’s, however, declined to provide an analysis of the measure’s potential impacts, saying it is not taking a position.
Denver Health also responded to a request by saying it does not take positions on ballot measures. A spokesperson for UCHealth said the system would evaluate the measure and its impacts only if it passes.
A spokesperson for HCA HealthONE said the hospital system believes its services won’t be impacted at all, while a spokesperson for AdventHealth responded by saying the hospital does not offer gender-affirming care for transgender minors. Pressed further about the potential broader impacts of the measure, the spokesperson replied in an email, “As with any measure affecting patient care, we’ll collaborate with state lawmakers to support whole-person health for the people we serve.”
A spokesperson for the state Medicaid agency — the measure would ban Medicaid from paying for gender-related surgeries for youth in Colorado — said the agency could not comment because it has not conducted an analysis of the measure.
“The Department would complete an analysis if Prop 135 passes,” the agency wrote in a statement.
Another wrinkle in the debate is that there are no hospitals in Colorado that say they offer the kinds of surgeries that everyone agrees would be banned — transition surgeries for transgender minors. Children’s Hospital, for instance, says it has never offered those surgeries.
Proponents of the measure, including Lee, say some of those hospitals are lying and cite research conducted by an organization that says it is opposed to “divisive trends in medicine, such as ‘Diversity, Equity and Inclusion’ and youth-focused gender ideology.” The organization’s database claims evidence from hospital billing records shows that 60 children received gender-affirming surgeries in Colorado from 2019 through 2023.
Critics of the research have questioned its methodology and accuracy.
What Proposition 135 says
Prop 135 would create a new law in Colorado called the Protect Children From Irreversible Sex Change Surgery Act.
The measure also contains what is known as a legislative declaration, which is a handful of statements that clarify intent and reasoning and can be used to interpret the statute. Among those statements is a reference to procedures that “surgically alter a minor child’s biological sex.”
But the operative text of the measure — the language that would be placed into statutes alongside other laws — does not mention sex change and instead refers to surgeries “altering biological sex characteristics.” The measure says those procedures are banned if they are conducted “in response to a minor’s perception of sex or gender.”
This is the first flashpoint in the debate over the measure’s impacts. What does that mean?
The language does not reflect a clearly defined medical standard, argued Jack Teter, the vice president of government affairs at Planned Parenthood of the Rocky Mountains, which is part of a coalition called Families Not Politics that opposes the measure.
“The perception of THEIR gender, or gender in general?” Teter wrote in an email. “That raises difficult questions in real-world medical situations.”
Teter brought up gynecomastia, the condition that causes adolescent boys to develop breasts. While the condition can cause soreness, clinics that provide treatment often focus on the emotional toll instead of any potential medical harm.
As one Denver clinic wrote on its website: “Teenagers dealing with this condition often grapple with diminished self-esteem. They may resort to various measures to hide their chests, avoiding activities like swimming or participating in sports.”
Teter asked: If a teen boy opts for surgery so that his body more closely matches his perception of what a male body should look like, isn’t that gender-affirming care? And wouldn’t the measure ban that?
The exemptions in Prop 135
Supporters of 135 answer that question by pointing to the measure’s exemptions.
There are three:
- One exemption is for male circumcision.
- A second provides an exemption for “treatment for persons born with a medically verifiable disorder of sex development.”
- And a third is an exemption for “treatment for acquired physical or chemical abnormalities.”
Lee, one of the chief proponents of 135, suggested surgery for gynecomastia would fall into the second exemption.
“That is a verifiable condition that requires medical treatment,” she said. “That is not an attempt to change sex. So, it is not a surgery for the purpose of changing sex.”
Moti Gorin, a philosophy professor and bioethicist at Colorado State University, said surgery for gynecomastia could be covered by the third exemption. Gorin was one of the authors of a federal report critical of gender-affirming care for transgender minors, though he is not involved in the campaign backing 135.
“As I understand it, Prop 135 is intended to cover only those surgical interventions on minors that aim to alter the patient’s body so that it more closely resembles the body of a member of the opposite sex, and that it is not meant to restrict interventions that aim to prevent, treat, or cure physical pathology,” he wrote in an email.
But opponents of the measure contend these interpretations fall short.
Though not defined in the measure, a “disorder of sex development” is generally considered in medicine to refer to one of dozens of conditions with an underlying genetic cause. It typically does not refer to gynecomastia.
Second, opponents say, it’s not clear that gynecomastia qualifies as an abnormality. Estimates are that more than half of adolescent boys have some degree of breast development during puberty. And the measure similarly doesn’t define what constitutes an “acquired” condition.
“Since the exemptions aren’t written by doctors, they often use words that don’t have any specific medical meanings — which makes them even harder to interpret,” said Wynia, the CU-Anschutz bioethicist. “That is the fundamental problem with practicing medicine by statute.”
Wynia likened the potential consequences to those of abortion bans passed in other states, where access to some types of nonabortion-related maternal care has also diminished.
Debate over the Blue Book
A number of Colorado medical groups oppose the measure. They include the Colorado Medical Society, the Colorado Academy of Family Physicians and the Colorado Psychiatric Society. The groups say they oppose government interference in doctors’ medical decisions.
Lee said the campaign did consult with doctors, biologists and attorneys in writing the measure, which she said was carefully crafted and sought to avoid unintended consequences.
The blue book, the state’s nonpartisan voter information guide that is prepared using input from both proponents and opponents, states that 135 “may also limit other surgeries for minors, including non-transgender minors, if the treatment is interpreted as being in response to the minor’s sex or gender perception.” In an interview, Lee said she doesn’t think the blue book’s language is fair and likened it to propaganda.
The measure, she said, “explicitly states that this would only outlaw surgeries for the purpose — the keyword being purpose — of attempting to alter biological sex.”
But opponents argue that whether doctors, lawyers and regulators will see it the same way if the measure passes isn’t clear.
“Your guess is as good as ours,” Teter said, “and that’s exactly the problem.”
