HB2079 Would Legalize Child Kidnapping for Sex Change
by Austin Martin, Chair, Hawaii Libertarian Party
The Hawaii Kidnapping Bill (HB2079, ‘Relating to Health’) is among the worst proposed laws of this legislative session.
Awaiting Senate action after passing the House, HB2079 grants a de-facto immunity and asylum in Hawaii for any kidnapper who claims to be helping a child receive so-called ‘gender-affirming’ treatments.
The bill’s intent to legalize interstate kidnapping is outlined in the text:
§583A-208 - Jurisdiction declined by reason of conduct:
(d) In making a determination under this section, a court shall not consider as a factor weighing against the petitioner any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody if there is evidence that the taking or retention of the child was for the purposes of obtaining gender-affirming health care services for the child and the law or policy of the other state limits the ability of a parent to obtain gender‑affirming health care services for the child.
Testimony in support of HB2079 comes from Oregon-based QueerDoc.com which describes itself as, “a telemedicine-based gender affirming clinic.” QueerDoc arrogantly announces, “the medicine and science are not up for debate” and enthuses about 100s of mainland telehealth practitioners who “can issue a prescription for estrogen, progesterone, and testosterone blocking medications at that telehealth appointment.”
Far from unbiased, QueerDoc has an agenda for our children. The clinic was founded by an MD who describes herself as “they” and on her website touts “lived experience as a nonbinary femme and are SUPER queer themself, enjoying queer burlesque, vintage fashion, and their queer, kinky, poly family!”
Most of this bill is a series of loopholes, redefinitions, and special opt-outs of legal norms all in service of making Hawaii a sanctuary for underage sex change surgery. Amendments to deep and highly specialized areas of the law work together in the service of legalizing the truly unthinkable.
The Hawaii Kidnapping Bill's unique and unmistakable true intent is to allow legal protections for any non-parent with sufficient access and means to remove a child of any age from their home state, and to bring them to Hawaii in the name of receiving “Gender Affirming Care” – so long as they could not receive said ‘care’ in their home state.
The many sections of Hawaii Revised Statutes affected by the Hawaii Kidnapping Bill are designed to trigger a series of child-custody 'loopholes' that cause inter-state barriers to be systematically removed, so long as the instigator says the magic words: “Gender Affirming Care.”
The bill accomplishes its perverse ends by a 'reinterpretation' of a critical section of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) which governs interstate child-custody proceedings, and amending over a dozen other laws, to exempt any petitioner from the oversight offered by Hawaii’s Family Court system.
The bill's proposed amendments to the UCCJEA redefine a family-court emergency, to allow any person “acting as a parent” to obtain emergency temporary custody against natural parents who decline to provide their children so-called “Gender Affirming Care.” Natural parents’ refusal to provide sex-change procedures would be treated as being of the same legal weight and severity as actual physical abuse or child abandonment.
The bill reads:
§583A-204, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
(a) A court of this State [has] shall have temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because [the]:
(1) The child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse[.]; or
(2) The child has been unable to obtain gender‑affirming health care services.
This language plainly redefines a custody “emergency” to mean “unable to obtain gender‑affirming health care services.”
The rewriting of this uniform, nationwide custody law also undermines and threatens Hawaii’s participation in the UCCJEA. The whole point of our Uniform Child Custody Jurisdiction Enforcement Act is uniformity. If Hawaii passes HB2079 and stops returning children to other states, we risk being unable to secure the return of any Hawaii child who is taken out of state to pursue a custody battle.
The court that prevails in exercising jurisdiction first, usually maintains jurisdiction for the rest of the case, both practically and statistically speaking. Under the proposed language from HB2079, once ‘emergency jurisdiction’ is sought and approved by the Hawaii Family Court, several critical timelines begin to toll for the legal residency of the child to determine which court will have the ultimate say in final custody determinations.
The next phase is the so-called ‘temporary orders’ hearing. This section of HB2079 creates another loophole that can be easily exploited by a motivated kidnapper to keep a stolen child for longer than the short-term ‘emergency jurisdiction’ alone would allow.
The loophole specifically reads:
(d) The presence of a child in this State for the purpose of obtaining gender-affirming health care services shall be sufficient to meet the requirements of subsection (a)(2).”
Subsection (a)(2) governs what a court must do when the child is not clearly a legal resident of the State.
The UCCJEA prohibits this kind of abuse of temporary placement - as the original language of (a)(2) along with requirements (A) & (B) below shows us:
§583A-201 Initial child-custody jurisdiction.
(a) Except as otherwise provided in section 583A-204, a court of this State shall have jurisdiction to make an initial child-custody determination only if: …
(1) This State is the home state of the child …or…
(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 583A-207 or 583A-208, and:
(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
(B) Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;...
Under the proposed language from HB2079, these UCCJEA requirements are magically deemed “satisfied” and replaced–by using three magic words: “Gender Affirming Care”, if the child is from a state that has sex-change laws deemed insufficient by Hawaii and/or the natural parents are not providing sex-change ‘treatments.’ The kidnapper–who may be a non-relative– is treated by the Hawaii Family Court like a good Samaritan who will be granted temporary custody of a child stolen from his or her biological parents. No recourse nor due process is available for the affected victims and their families in their home state.
Local parents are also stripped of Hawaii Family Court recourse because HB2079 places their failure to provide access to so-called ‘Gender Affirming Care’ in the same category as child abuse, or more specifically, medical neglect. There is no meaningful due process for any family that is accused of medical neglect. There is no provision for legal representation or even notification of parents.
This bill goes to great lengths to enable outrageous practices across state lines. It aims to build long-term and short-term cases against parents who are otherwise perfectly fit - solely based on their sex-change viewpoint and/or the laws of their state. It allows any motivated adult to kidnap children with impunity from any state deemed insufficient in its sex-change laws.
In the recent Geanna Bradley torture-murder case, her legal guardians allegedly exploited telehealth for months or even years to hide their alleged torture of Geanna. Yet HB2079 allows telehealth practitioners to prescribe sex-change hormones to juveniles:
§329- Prescriptions; gender-affirming health care services. (a) Notwithstanding this chapter or any other law to the contrary, for the purposes of providing gender‑affirming health care services, a practitioner who is licensed in this State may prescribe schedule III and IV controlled substances, including testosterone:
(1) While the practitioner is located outside the State; and
(2) Without conducting an in‑person consultation with the patient; provided that the practitioner shall prescribe the controlled substances via a synchronous audio-visual telehealth interaction
According to the text, a single telehealth Zoom call is all it would take: after that, upon filing a petition to exercise emergency jurisdiction to a Hawaii court, instantly, the kidnapping of any child legally becomes a civil case and no longer open to prosecution as a criminal matter - denying victims and their families the help of federal or state law enforcement to return their children before permanent harm is done, and also forcing the out-of-state family to travel to Hawaii to be present for hearings. If the kidnapper has a long enough head-start and the family doesn't suspect them, by the time they find out what is happening, it could already be too late.
If the home state claims the child was kidnapped and attempts to escalate a criminal case - the bill's authors, disgustingly, have thought of that possibility too:
§323J-6 Denial of demands for surrender. Notwithstanding any provision of chapter 832 to the contrary, the governor shall deny any demand made by the executive authority of any state for the surrender of any person charged with a crime under the laws of that state when the alleged crime involves [the provision or receipt of,]:
(1) Seeking, receiving, paying for, or [assistance with,] inquiring about reproductive health care services[,] or gender-affirming health care services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),”
§323J-7 Laws contrary to the public policy of this State.
(a) A law of another state authorizing a civil action or criminal prosecution based on any of the following [is] shall be declared to be contrary to the public policy of this State:
(1) [Receiving, seeking, or] Seeking, receiving, paying for, or inquiring about reproductive health care services[;] or gender-affirming health care services that are lawful under the laws of this State;
(2) Providing or responding to an inquiry about reproductive health care services[;] or gender‑affirming health care services that are lawful under the laws of this State;
(3) [Engaging in conduct that assists or aids or abets the provision or receipt of reproductive health care services;] Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3)[,in accordance with the laws of this State].
HB2079 would forbid the entire State of Hawaii, including the Governor, from disclosing records or extraditing any kidnapper charged in another state, so long as the kidnapper alleges that the purpose of taking the child was to provide access to gender affirming care. It would forbid the courts from returning any child kidnapped from their home state under these auspices by nullifying any direct criminal charges. The authoritarian bill even forbids sending any information about whether the child has been subjected to life-changing procedures, like sex-change surgeries, even if the biological parents obtained help from the other states’ Governors, or if other authorities were to make formal legal demands. It would leave out-of-state parents completely in the dark and at the mercy of distant kangaroo courts. It even forbids the extradition of anyone charged with a crime in connection with 'helping a child to receive Gender Affirming Care', granting effective immunity for the actions of interstate kidnappers, so long as those actions are claimed to be in service of helping the child access Gender Affirming Care, even if they are wanted fugitives for those acts in another state.
Please let that sink in for a moment.
The Hawaii Kidnapping Bill also makes it a crime to interfere with the kidnappers or to disclose any data about the 'Gender Affirming Care' with anyone other than the kidnapper-petitioner, even if ordered by another court.
All this is predicated on nothing more than a single telehealth Zoom call as 'evidence' for the life-changing decision of an interstate judicial child custody determination.
It mandates nondisclosure by every last ‘mandatory reporter’ professional and care provider that could conceivably influence such a proceeding, placing a permanent professional gag order on whatever is done to the abducted children, no matter what authority or expert is doing the questioning.
It would be a crime under State law to comply with any oversight or investigation into the kidnappings from outside of Hawaii. Inside Hawaii, the situation would only be different if the family consented to give their children sex-changes; if not, then the provisions, when taken together, may form a direct bar to anyone requesting this information for any purpose contrary to promoting access to Gender Affirming Care. (The most relevant sections on this inquiry include: §323J-2, §323J-3, §323J-4, §451J-12). It appears that any family in Hawaii who does not consent to such care would not have access to records.
The authors of the Hawaii Kidnapping Bill have made a very distinct legislative package designed to facilitate abusive behavior. If it passes, the odds of an out-of-state family ever getting their child back from Hawaii legally would be slim. This law provides for atrocities against vulnerable, trafficked minors - with no legal protection or recourse for defendants and victims, and full protection for the perpetrators.
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HB2079: Text, Status – Passed Third Reading in the House, March 5, 2024, with Representative(s) Chun, Souza voting aye with reservations; Representative(s) Aiu, Alcos, Garcia, Gates, Holt, Kila, Kong, La Chica, Lamosao, Martinez, Matsumoto, Pierick, Quinlan, Ward voting no (14) and Representative(s) Cochran, Woodson excused (2).