Eyebrows raised over Nebraska Board of Health’s advocacy for bill banning gender-affirming care

LINCOLN – As a deadline approached for March 21 debate on a controversial bill to ban gender-affirming procedures for minors, a trio of members of the Nebraska Board of Health scrambled to draft a board statement to support passage of the bill.

According to emails and text messages reviewed by the Nebraska Examiner, the process had started after one of the board’s members, Dr. Jaime Dodge, a Lincoln family physician, testified in favor of Legislative Bill 574, labeled as the “Let Them Grow Act,” on Feb. 8.

In an interview, State Sen. Kathleen Kauth of Omaha, the main sponsor of the bill, said she had suggested to Dodge after the bill hearing that a statement of support for her proposal would be helpful. After all, she said, a similar ban in Florida began with a vote by the board of medicine in that state.

“If you could get it for Monday’s meeting so I can present it Tuesday that would be pretty amazing,” Kauth wrote in a March 16 text message to Dodge. “But I know that’s going to be a tough, tough lift ….”

“I will do my best,” Dodge responded.

There was some urgency. The 17-member Nebraska Board of Health, composed of a wide array of health professionals appointed by the governor, was meeting March 20, one day before debate on LB 574 began.

The text messages and emails, obtained via a public records request, revealed the behind-the-scenes work to draft a statement supporting the bill and to make sure “allies” in the State Legislature received it before debate began. 

Kauth said the statement was helpful to her, because it was a panel of medical professionals backing up her opinion that it is irresponsible and dangerous to allow surgeries or drug treatments for minors to change genders.

Motivated by politics

Critics of LB 574 viewed it differently — as something motivated by far-right politics, a departure from the Health Board’s main responsibilities and another example of how politicians are overriding sound medical recommendations.

The Health Board’s main role is to weigh in on “scope of practice” issues between the various health professions and to advise the state Department of Health and Human Services on public health issues.

“It was definitely a politically driven, well-orchestrated effort, in collusion with the (bill’s) sponsor, to push a political position,” said State Sen. Danielle Conrad of Lincoln, an opponent of the bill who made the public records request for the communications among Health Board members.

Conrad, as well as the ACLU of Nebraska and a former state health director, also raised concerns that the board’s statement runs counter to advice from leading physicians groups, including the American Medical Association and American Academy of Pediatrics. Those organizations oppose bans on gender-affirming care for trans youth and advocate for leaving the difficult decisions to families and physicians.

‘Out of their scope’

Dr. Gregg Wright, who served as state health director under three Nebraska governors, said it would be different if pediatricians and other physicians were saying such procedures were “terrible” and should never been done, but that is not the case.

Instead, the statement provided a political statement, according to Wright, who is a retired pediatrician, and not one based on the best, recommended care involving a very complicated issue and a “very high-risk group of kids.”

“What they’re saying is we don’t want you following professional care,” he said “That seems way out of what their scope should be.”

In a series of text messages, John Kuehn, a board member and a political ally of former Gov. Pete Ricketts who appointed him to the Board of Health in 2020, defended the board’s policy statement. Kuehn, a veterinarian, said the diverse body tracks pending legislation and “regularly provides perspective on public health issues and takes positions on policy matters.”

‘Certainly’ within role of board

A major responsibility of the Health Board, Kuehn and others said, is to provide recommendations on proposed “scope of practice” changes between health professionals, such as what a nurse anesthetist can do compared to an anesthesiologist.

“Legislation that says what a medical professional can or cannot do is, by definition, a scope of practice issue and certainly one to be considered by the Board,” wrote Kuehn, who emphasized that he was speaking for himself, and not the Board of Health.

Dodge, who has an office in Lincoln, did not return phone calls or an email seeking comment.

But texts and emails reviewed by the Examiner, which begin on March 9 and extend to March 21 — the first day of debate on LB 574 — provide a clear picture of how a trio of Health Board members, and eventually Sen. Kauth, were working to get a letter of support from the board.

‘Very rough draft’

Dodge first provided “a very rough draft” of a policy statement in a March 9 email. Kuehn, in a March 14 response to Dodge and another board member, Dr. Doug Bauer, a Lincoln osteopath, offered a revised proposal.

Kuehn, who co-chaired the Ricketts-backed Smart Approaches to Marijuana committee that has opposed legalization of medical cannabis, sent the draft to three fellow board members to get their “temperature” on the proposal opposing “irreversible surgical and hormonal manipulation of minors …”

“We will get a lot of pushback from DHHS staff so if we’re going to do it, we need to be unified,” Kuehn wrote in a March 16 text.

The messages also revealed efforts to make sure supporters of such a statement would be present at the March 20 board meeting to vote. Other messages expressed a desire to make sure the statement got to Kauth prior to the debate and was seen by other legislators.

“We need to just proactively make sure our allies in the Legislature receive a copy directly,” Kuehn wrote on the evening of March 20, a few hours after the statement was approved by the Board of Health. He had expressed concern that senators would not see the statement if it was submitted by a typical route — sending an email to a legislative portal that assembles comments on legislation.

A ‘big win’

Later, Kuehn celebrated the adoption of the statement, which was approved on a 11-0 vote with one abstention, as a “big win” in a text to Dodge.

“Principled, conservative wins on these big social issues are few and far between,” Kuehn texted. “This was a really heavy lift, and I think a significant victory.”

 “Five years ago, or even just a couple of years ago for that matter, the Board of Health taking a position of this nature would’ve been unthinkable,” he added.

The minutes of the March 20 Health Board meeting stated that the statement would be submitted “as an online comment of LB 574.” But  printed copies were also delivered to state senators on the floor of the Legislature as they opened first-round debate on the bill.

Conrad said she thought the Health Board’s statement carried a lot of weight with a couple of lawmakers who were uncertain about LB 574. The bill advanced from first-round debate on a 30-17 vote after collecting the minimum votes needed, 33, to overcome a bill-blocking filibuster.

Conrad called it “an example of how to weaponize even neutral and objective entities to engage in partisan, political lobbying.”

Wright and former State Sen. Don Wesely, who served 14 years as chair of the Legislature’s Health and Human Services Committee, both said that the main role of the Board of Health is to deal with disputes over “scope of practice” between health professions.

While the Department of Health and Human Services regularly takes positions on legislative bills, Wesely said he could not recall the Board of Health doing that. Wright said the Health Board does advise the DHHS on policy decisions.

During the Board of Health’s March 20 meeting, Kuehn, as chair of its Public Health, Education and Legislation Subcommittee, did report that a letter would be submitted “in support for motorcycle helmets” on a proposal to drop the state’s requirement. Attempts by the Examiner Wednesday to confirm that such a letter was sent were unsuccessful.

The ACLU — of which Conrad is a former executive director — said its main concern was that lawmakers disregarded dozens of physicians who signed a letter opposing LB 574, as well as parents and trans youth themselves. Associations representing state physicians, psychologists, nurses, pediatricians, social workers and ob/gyns testified against the bill.

“Fishing for a specific viewpoint and ignoring the vast majority of other perspectives is never a good approach to making law,” said Jane Seu, the ACLU’s legal and policy counsel.

At this point, LB 574 is in a holding pattern after a chaotic second-round debate that resulted in advancement of the bill, on a 33-16 vote, and a promise from Kauth to negotiate an amendment to resolve concerns of some senators.

Kauth, earlier this week, said those talks have resulted in some “good discussions” with the senators involved in the negotiations.

The senator said she hopes that a proposal can be reached by next week. LB 574 would have to be returned from final reading to second-round debate to attach any amendment.