State Sen. Kathleen Kauth of Omaha, at center, speaks with State Sen. Mike Jacobson of North Platte during debate on LB 574 on Thursday, April 13, 2023, in Lincoln. (Zach Wendling/Nebraska Examiner)
LINCOLN — Chaos erupted on the floor of the Nebraska Legislature on Thursday after a last-minute effort to consider an “olive branch” amendment on a bill to restrict some gender-affirming care for minors.
Legislative Bill 574, proposed by State Sen. Kathleen Kauth of Omaha, would restrict puberty blockers, hormone therapies and genital or non-genital surgeries for minors with gender dysphoria.
An amendment offered by Kauth, which she described as an “olive branch,” would have restricted only surgeries. However, senators voted 11-28 against the amendment at Kauth’s request.
All 32 Republican legislators and State Sen. Mike McDonnell of Omaha, a Democrat, voted 33-16 to end debate and to advance LB 574 after Kauth committed to negotiating a final reading amendment. The Legislature is officially nonpartisan.
Chaotic ‘olive branch’ amendment
The 2023 legislative session has been defined by LB 574, with senators using the bill as a catalyst to bring the session to a near standstill.
Senators were scheduled to debate LB 574 for four hours before Kauth could introduce a motion to end debate.
However, with less than 30 minutes remaining, State Sen. Megan Hunt of Omaha unexpectedly withdrew three priority motions that would postpone or kill the bill. This forced immediate consideration of Kauth’s amendment.
“Let’s see the olive branch,” Hunt told Kauth.
But Kauth told Hunt, “We have our votes” for the main bill. She said supporters would move ahead despite the “all of a sudden” change.
State Sen. John Arch of La Vista, speaker of the Legislature, put the Legislature into a 15-minute pause, and then State Sen. Danielle Conrad of Lincoln called for the Legislature to recess for an additional 30 minutes.
This led to confusion, silence and huddles among key senators, casting doubt on the bill’s future. A change in support from just one senator would be enough to kill the bill.
State Sens. Jana Hughes of Seward and Tom Brandt of Plymouth, seen as possible swing votes on LB 574, were among those called into conversations.
Once senators returned, Arch said he thought Kauth might remove the amendment and wanted to pause to counsel Kauth, a freshman legislator, on what options she had with the legislation.
Arch said he asked Kauth not to withdraw the amendment and to take a vote.
“I do appreciate your patience with this,” Arch told legislators. “This is a difficult time. This is a complex problem. And as they say, it impacts not only the public but also proceedings of the Legislature.”
Kauth said the change from opponents was a “welcome surprise.” Throughout the first round of debate, opponents blocked consideration of any amendments.
She encouraged senators to vote against her amendment Thursday. In exchange, she promised to negotiate perhaps a different amendment for the third and final stage of debate.
State Sen. John Cavanaugh of Omaha said the change is “better late than never” and better than nothing, but he cautioned senators that any amendment on final reading will include additional procedural steps and additional time.
Seven Democrats, who all oppose LB 574, took the olive branch, voting for Kauth’s amendment: State Sens. Carol Blood of Bellevue, Machaela Cavanaugh of Omaha, Jen Day of Omaha, Jane Raybould of Lincoln, Tony Vargas of Omaha, Lynne Walz of Fremont and Anna Wishart of Lincoln.
Four senators who have cast pivotal votes for cloture indicated support for an amendment: State Sen. Myron Dorn of Adams, Brandt, Hughes and McDonnell.
Brandt, Dorn and McDonnell were among 11 who voted for the amendment Thursday. They also said they are open to considering a future amendment.
Hughes voted against the amendment in hopes of a different, “better” measure. She said this could include a greater focus on mental health.
“I think we can come together and make it better,” Hughes said. “You can just take out surgeries but you’re still not addressing the problem.”
State Sen. Ray Aguilar of Grand Island also voted for the amendment but told the Nebraska Examiner he mistakenly thought Kauth was in favor of the measure. He said he will consider a future negotiated amendment.
‘We’re sick of it’
Supporters and opponents made their pitches earlier in the day on LB 574.
Kauth said the bill is designed to prohibit “experimental” and “irreversible” procedures for minors whose brains are still growing. She said there are also restrictions for minors regarding tattoos, car seats, alcohol, smoking, helmets and certain movies, and the procedures outlined in LB 574 should fall into the same category.
Doctors who provide gender-affirming care have pushed back on the notion the procedures are “experimental” and “irreversible.”
State Sen. Mike Jacobson of North Platte criticized opponents for using LB 574 as the catalyst to filibuster all legislation. As of Thursday, the 61st day of the session, no bills have passed final reading.
“Frankly, we’re sick of it,” Jacobson said.
State Sen. Christy Armendariz of Omaha, who voted for cloture but against the bill in the first round of debate, told the Examiner that she holds off on deciding how to vote until after debate ends.
She said that supporters, in this round of debate, came with a “better story” that was “more convincing.” She said she lost trust in some opponents’ language a couple of weeks ago and was unable to decipher arguments they were making.
“When I’m trying to evaluate the truth, because I don’t have a dog in this fight, I have to go with my gut as a parent,” Armendariz said. “As a parent, I’ve always told my kids, ‘Don’t do anything permanent to your body, no matter what it is, until you’re old enough to make that decision and your brain is fully developed.’”
Armendariz said she would not commit to voting one way or another in future debate.
Potential legal jeopardy
State Sens. George Dungan of Lincoln and John Cavanaugh said the bill could be in legal jeopardy if passed, on First and Fourteenth Amendment grounds, for discriminating on the basis of sex.
John Cavanaugh said a similar law in Arkansas, which is in the same federal court circuit as Nebraska, is currently held up in court.
“[LB 574] will fail the same test as the underlying law on the constitutional basis of discrimination in the federal court,” he said.
He said certain procedures would be prohibited for children with gender dysphoria but not for cisgender children. For example, breast augmentation would be allowed for cisgender girls but not transgender girls.
Dungan, regarding a future amendment, said he accepts the idea of moving forward but that doing so “cannot include harming people’s physical person or infringing upon their rights.”
“I do not think that you are malicious,” Dungan told supporters of LB 574. “I think you are trying to help. Please listen: Don’t be sympathetic or pity people. Be empathetic and understand where people are coming from.”
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