Protesters carry flags in front of the Nebraska State Capitol for LGBTQ and transgender Nebraskans on Friday, March 31, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)
LINCOLN — The latest fight over gender-affirming care in Nebraska has shifted, at least slightly, from whether there should be restrictions to who should have the final authority in drafting them.
A new amendment would combine two of the most controversial topics this legislative session — abortion and gender-affirming care — into Legislative Bill 574, the gender-care bill proposed by State Sen. Kathleen Kauth of Omaha. The idea is that by reviving abortion as an approximate 12-week ban, and making additional changes to LB 574, supporters could shore up 33 votes to get both signed into law.
Under Blair State Sen. Ben Hansen’s amendment, introduced Monday, lawmakers would prohibit gender-affirming surgeries and authorize the state’s chief medical officer to set rules and regulations for minors seeking puberty blockers and hormone therapies.
Rather than the legislative branch, the state’s chief medical officer would determine the provisions, while the Nebraska Department of Health and Human Services would set rules to enforce the law.
“Allowing the Chief Medical Officer of the state, who is a political appointee, to determine regulations around gender-affirming care will likely result in a worse, more restrictive bill than the original LB 574 as introduced,” State Sen. Megan Hunt of Omaha tweeted Tuesday.
Supporters argue the shift would allow experts to weigh in, but they note the chief medical officer, Dr. Timothy Tesmer, would have the prerogative to set restrictions.
“It’s possible that some of the criteria that will be put in place may be more stringent than some would hope for, but it is my belief that those criteria will be aimed at protecting kids and ensuring that these procedures are used in limited circumstances where they’re absolutely necessary,” State Sen. Tom Briese of Albion said.
A substantive compromise
Rules and regulations process
Agencies must follow a specific process for adopting and enforcing respective rules and regulations, including the Department of Health and Human Services.
The first step is a public hearing, which must be conducted within one year of enactment of legislation (in this case, Oct. 1). Rules and regulations must be adopted one year after that hearing. This sets up a timeline where rules and regulations for gender-affirming care for minors may not be ready until 2025.
In the meantime, except for those allowed to continue gender-affirming procedures, access to puberty blockers and hormones would be restricted.
Once the rules are drafted, agencies would submit them for approval by the Attorney General’s Office and then the governor. Additional provisions allow agencies unable to adopt provisions in that time frame to explain the issues involved, state when rules and regulations are expected and suggest statutory changes that may enable the agency to adopt such rules.
The delegation of responsibilities from an elected branch to an appointed agency has become a new lightning rod in the session-long discussion over gender-affirming care that has sparked near-endless filibusters.
However, Monday’s amendment represents some movement.
“I think we compromised more than I thought we would,” said Hansen, chair of the Health and Human Services Committee.
Hansen, Kauth, Briese and five other senators sat down for a few “listening sessions” after the tense second-round approval of LB 574, seeking to determine a path forward.
Hansen’s amendment would allow youths to continue treatments if they start before Oct. 1, when the bill would go into effect. The amendment also clarifies that treatments such as mental health therapies or counseling are not affected.
Puberty blockers or hormones in non-transition services would not be restricted, Kauth and Hansen said.
In addition, a handful of “minimum” standards would be set for the chief medical officer and DHHS, such as:
- Specifying that a practitioner may prescribe blockers or hormones, or both, to a minor who has a “long-lasting and intense pattern of gender nonconformity or gender dysphoria which began or worsened at the start of puberty.”
- Setting a minimum number of “gender-identity-focused therapeutic hours” that would be required prior to care.
- Establishing patient advisory requirements necessary for informed consent.
- Requiring medical record documentation.
- Creating a minimum waiting period between informed patient consent and the administration, prescribing or delivery of puberty blockers or hormones.
‘Backdoor way to a full ban’
The three opponents to LB 574 who were part of the “listening sessions” for the bill said the lack of “maximum” standards could cause harm and could lead to full bans on blockers and hormones.
State Sens. John Cavanaugh, John Fredrickson and Lynne Walz drafted their own proposed set of rules and regulations during the “listening sessions.”
However, while the trio’s proposal included seven specific steps and an additional one-year waiting period before allowing surgeries, they expressed concerns that the “minimum” standards are too vague.
“When it comes to access to care, I think certainty is important,” Cavanaugh said.
If the Legislature determines it should step in to regulate medicine, it should do so with “clear direction,” he said.
The group of eight senators joined in “good conversation” for the first time this session, Kauth said, with much of Hansen’s amendment reflecting those efforts.
“We’re very far apart. We see it very differently,” Kauth said. “We see it as protecting children until they are able to make those decisions as adults, and they see it as treating children who are in incredible pain.”
Fredrickson said the ambiguity leaves open the possibility that Tesmer, an ear, nose and throat doctor, could determine that no gender-affirming care is appropriate and could potentially be a “backdoor way to a full ban.”
“I think the fact that there is discussion around moving away from a full ban is certainly progress in the right direction,” Fredrickson said. “But I can’t support something that has ambiguity, given the stakes that are at play here.”
Walz said the trio’s work could serve as a guide, especially in what could be a lengthy timeline before DHHS and the chief medical officer adopt rules and regulations.
“I think that should be the road map,” Walz said of their drafted outline. “I think it’s a protection for kids as opposed to a total ban on everything that we were talking about before.”
One of Walz’s main concerns without immediate clarity is families leaving Nebraska to obtain gender-affirming care in states where similar provisions may not be in effect. She said this would impede a stated goal of “protecting children.”
‘Political points and political wins’
Cavanaugh said the chief medical officer’s role in drafting future rules and regulations could be another problem: Tesmer was chair of the State Board of Health when it approved a March 20 statement in support of the original LB 574.
That process included a push by Kauth to get a statement ready quickly so it would be completed in time for legislative debate. Board members approved the statement 11-0.
Former State Sen. John Kuehn and Dr. Jaime Dodge, two Board of Health members, were instrumental in drafting the statement.
“Principled, conservative wins on these big social issues are few and far between,” Kuehn texted Dodge after the vote. “This was a really heavy lift, and I think a significant victory.”
Cavanaugh said the new amendment puts politics over policy and, like the Board of Health’s original statement, is about “scoring political points and political wins.”
Hansen said the decision is best left where people with “better expertise” can investigate the issue opposed to lawmakers making an emotional decision.
If the chief medical officer goes too far or does not adequately address the issue, he said, the Legislature retains its right to step in.
State Sen. Machaela Cavanaugh of Omaha, who has led the nearly 11 weeks of filibusters bringing the Legislature to a crawl, threatened to challenge germaneness, or relevance, on additional legislation this session and would not stop filibustering.
“We are all in this sinking Titanic ship together,” she said. “Let’s organize the chairs on the deck.”
Five senators to watch
State Sen. Tom Brandt of Plymouth said the new proposal is “better than it was before,” and he’s leaning toward supporting an amended LB 574.
State Sen. Myron Dorn of Adams said that the process will need to play out and that he needs to review the full amendment. However, Dorn said, “some opportunities” exist in the new proposal.
State Sen. Mike McDonnell of Omaha said he had not seen the amendment drafted by Cavanaugh, Walz and Fredrickson prior to Monday.
While he said he would vote for the amended LB 574 if the vote were held today, McDonnell said he’s “not closing the door” to further amendments and would meet with the three senators to learn more.
State Sen. Jana Hughes of Seward voted against an amendment during second-round debate of LB 574 to prohibit only surgeries. She said she was hoping for a “better” amendment, with Hansen’s proposal being an improvement.
The final say, Hughes said, would be “in the hands of a medical person and DHHS.”
She noted that Tesmer would not be prohibited from reviewing the Cavanaugh-Fredrickson-Walz amendment or meeting with health care professionals, including Fredrickson, a mental health practitioner.
“I’m not a doctor, I’m an engineer,” Hughes said.
State Sen. Merv Riepe of Ralston voted “present” two weeks ago on LB 626, the six-
week abortion ban. His refusal to support the bill nearly doomed chances of legislating further abortion restrictions this year.
He said he would see how the vote plays out and is not giving a hint for or against Hansen’s amendment. Under current Nebraska law, abortions are legal up to 20 weeks.
While Hughes and others have some concerns about passing the torch on gender-affirming care to a political appointee, Hughes said she is going to trust DHHS to do the right thing.
“I’m going to assume that he’s not going to do this just on his own,” Hughes said of Tesmer. “He will consult with other doctors and the right people, psychologists about this to come up with the criteria, I hope. That’s his job.”
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