A growing number of Nebraska lawmakers seeks to avoid another fight on trans youth in 2024

Some lawmakers instead look to State Board of Education and local school boards to address bathrooms and sporting teams

By: - June 22, 2023 5:00 am
Kathleen Kauth introduces legislation before the Education Committee dealing with trans youth in sports, bathrooms and locker rooms

State Sen. Kathleen Kauth of Omaha introduces a bill Monday, Feb. 13, 2023, in Lincoln, Neb., before the Education Committee that would define school group bathrooms and sporting teams as either male or female. (Zach Wendling/Nebraska Examiner)

Two-part series

Today: Some lawmakers lean into local control, not legislative action, to address trans participation in youth sports and use of bathrooms or locker rooms.

Tomorrow: A transgender health care provider and an exercise specialist weigh in on the sports, bathrooms and locker room proposal for trans youth.

LINCOLN — After passing a bill this year to prohibit certain health care for transgender youth, some Nebraska lawmakers may not have the appetite for a similar fight in 2024 over school bathrooms and sporting teams.

Instead, those battles could shift from the statehouse to the schoolhouse.

State Sens. Merv Riepe of Ralston, Jana Hughes of Seward, Teresa Ibach of Sumner and Mike Jacobson of North Platte are among those who voted for the health care restrictions but told the Nebraska Examiner that their support for local control could provide a different avenue next year to address Legislative Bill 575, the Sports and Spaces Act.

The group of lawmakers has set out to strike a new tone after the rancorous 2023 session largely defined by LB 575’s sister bill, LB 574

State Senator Kathleen Kauth speaks at a news podium on LB 574, dealing with abortion and trans health care, prior to the bill being signed into law
State Sen. Kathleen Kauth of Omaha, the lead sponsor of LB 574, speaks prior to her law being signed into law on May 22, 2023. (Zach Wendling/Nebraska Examiner)

State Sen. Kathleen Kauth of Omaha, a freshman senator, introduced both bills and has argued both are necessary to protect children, women’s sports and safe spaces. 

Lawmakers this year passed the gender care restrictions on a 33-15 vote, banning transition surgeries before the age of 19 and setting the stage for restrictions on puberty blockers and hormone therapies for minors. The state’s chief medical officer will have the final say on the policies for blockers and hormones, which might not be in place before the 2024 session.

LB 575 would define group bathrooms, locker rooms and sporting teams as either male or female, still allowing coed or mixed teams. It would also ditch the Nebraska School Activities Association’s Gender Participation Policy, which currently governs trans student-athletes. 

That policy includes a committee that must review trans students’ eligibility to participate, including medication examination and physiological testing. Opponents say this already opens the door to denying a student’s application if they are not trans or have physiological advantages in the committee’s view.

‘Pick the scab’ of 2023

Riepe was among the first senators who supported LB 574 to raise public scrutiny of Kauth’s second bill on schools. On May 30, two days before the session ended, he publicly withdrew his sponsorship from the bill.

Privately, Riepe had already expressed concern with LB 575 earlier this year.

In a two-sentence, March 22 memo, he wrote to Kauth and State Sens. Ben Hansen of Blair, Health and Human Service Committee chair; Rob Clements of Elmwood, who prioritized LB 575; and John Arch of La Vista, the speaker of the Legislature.

“The greatest victory is that which requires no battle,” Riepe wrote, quoting Sun Tzu, a Chinese general. 

“It is my recommendation that we amend LB 575 to stipulate our expectations to the State Board of Education, and require the State Board of Education to address the issue, not the state Legislature,” Riepe wrote.

March 22 was the second of a three-day initial debate of LB 574, the same day State Sen. Megan Hunt of Omaha detailed how the bill would harm her and her son, who is trans.

Riepe said in a follow-up interview he doesn’t want to “pick the scab” of LB 574, which is being challenged in court. 

A federal judge in Arkansas struck down a similar law Tuesday night regarding gender-affirming for minors. The state plans to appeal the decision, which would go to the 8th U.S. Circuit Court of Appeals that could have bearing over LB 574.

Riepe said lawmakers sometimes have a tendency to jump too quickly into issues, as if they’re “Mighty Mouse,” a classic cartoon mouse whose catchphrase was, “Here I come to save the day!”

“My dad one time told me, ‘Don’t go looking for a fight. You’ll find one you can’t handle,’” Riepe said.

‘They don’t have the teeth’

Kauth rejected Riepe’s suggestion, describing it as not viable for the Board of Education.

“They don’t have the teeth for it,” Kauth said.

Local school boards are already weighing in, such as Kearney Public Schools Board of Education, which passed a policy this year to require student-athletes to compete in sports according to their sex assigned at birth, which Kauth said has left them “out there on their own.” 

LB 575 is necessary, Kauth said, because it would give structure to all Nebraska schools while allowing them to still account for local conditions.

Lawmakers used a similar method with LB 574, the gender care restrictions, setting a minimum level of restrictions for puberty blockers and hormones for the chief medical officer to interpret. 

“How they need to implement that at the school level, at the building level, that’s up to them,” Kauth said. “This just gives them the guidelines of the parameters, and these are the expectations.”

State Sen. Merv Riepe of Ralston. (Zach Wendling/Nebraska Examiner)

Riepe said Kauth’s hesitance in leaving the issue to the State Board of Education is a “big assumption,” and if school boards don’t want to step up, then the boards are not needed.

“Make them prove that they don’t [have the teeth for it],” Riepe said. “Then you have a better rationale for coming back.”

State board members Sherry Jones and Kirk Penner testified in their individual capacities in support of Kauth’s LB 574 and LB 575, respectively.

Arch, who sets the legislative schedule, said on the final day of the 2023 session that next year “largely depends on where society is.”

“If society continues to be divided and polarized on these issues, we’ll see some of that next year, but that shouldn’t define us,” he said.

Trust they ‘know their situations’

Hughes and Ibach said the NSAA policy appears to address many issues on the sports side, while schools can address bathrooms.

Ibach, though, said she still has concerns over physiological advantages students assigned male at birth may have over their cisgender peers, and she said she was proud of the steps Kearney took.

State Sen. Teresa Ibach of Sumner. (Zach Wendling/Nebraska Examiner)

“Legislators have to allow local control to guide what’s best for their students,” Ibach said in an email. “We have to trust that school boards know their situations and use their best judgment regarding these issues.”

Jacobson said he hopes the policies are dealt with at the federal or local level, which could allow state lawmakers to come back with a cleaner slate and not repeat 2023.

“I think it flies in the face of Title IX and really destroys the spirit of Title IX,” Jacobson said, if no changes are made.

Title IX is the federal civil rights law that prohibits sex-based discrimination in educational programs or activities that receive federal financial assistance. It paved the way for women to participate in sports more than 50 years ago.

The NSAA policy outlines “preserving Title IX protections for female activities” among its goals.

State Sen. Tom Brandt of Plymouth said he is waiting to see what comes of a West Virginia lawsuit dealing with similar policies. In that case, the U.S. Supreme Court declined to block a middle school student from playing according to her gender identity while an appeal plays out. 

State Sen. Myron Dorn of Adams. (Zach Wendling/Nebraska Examiner)

State Sen. Myron Dorn of Adams noted that next year will be different because there are only 60 legislative days, not 90, and it’s his preference that LB 575 not advance out of committee. 

Five of eight members of that committee are cosigners on the bill, however. 

State Sen. Christy Armendariz of Omaha said she would use part of the Legislature’s interim period and research the issue.

Hughes, Ibach, Jacobson, Brandt, Dorn and Armendariz remain cosigners of LB 575.

But Riepe has shown a cosponsorship is not the final say.

Earlier this year he was “present, not voting” on a near-total abortion ban, which defeated the bill until it was revived in a new form and amended into LB 574 as a combined abortion-gender care proposal. 

The backlash he received for not withdrawing his cosponsorship of the initial abortion bill is part of the reason he did so on LB 575.

A handful of other supporters of LB 574 have not yet signed on to 575, including State Sens. Julie Slama of Dunbar, Mike Moser of Columbus, Arch and Carolyn Bosn of Lincoln.

Slama told the Examiner she is in “full support” of LB 575 and just had not yet added her name to the bill.

Bosn was appointed in April, after a hearing was held for LB 575, and she said she would take the interim session to read the bill, speak with colleagues about its hearing and “keep an open mind on social issues as much as I can for as long as I can.”

LB 575 depends on LB 574 implementation

Trans girls are at the center of the fight in LB 575, who already in Nebraska must overcome medical and physiological hurdles as part of the NSAA policy.

Dr. Timothy Tesmer, the state’s chief medical officer. (Zach Wendling/Nebraska Examiner)

Through LB 574, the state’s chief medical officer, Dr. Timothy Tesmer, will need to draft rules and regulations involving blockers and hormones for minors to transition, with hormones required for trans girls.

The policies Tesmer will implement must include prescribing such blockers or hormones only to minors who have a “long-lasting and intense pattern of gender nonconformity or gender dysphoria which began or worsened at the start of puberty.”

The rules must also include criteria, obligations or conditions prior to the medications, such as:

  • The minimum number of gender-identity-focused therapeutic hours required.
  • Patient advisory requirements necessary for informed patient consent.
  • Patient medical record documentation requirements.
  • A minimum waiting period between informed patient consent and the administration, prescribing or delivery of such drugs.

Those requirements set only a minimum standard, opponents said during the debate on LB 574, so the guidelines could be written in a way that makes the medications impossible to receive. 

Tesmer has stated the guidelines are in process but may not be finished by Oct. 1, the date the law goes into effect. This has raised confusion among supporters and opponents about whether there will be a full ban on the medications for new patients at that point.

Youth who start the medications prior to Oct. 1 could continue their treatments.

Education Committee poised to advance bill

State Sen. Dave Murman of Glenvil, chair of the Education Committee, said it remains his goal to advance LB 575 out of committee as soon as possible next year.

State Senator Dave Murman of Glenvil has supported bills dealing with trans youth in the state and is the lead sponsor of a bill to outlaw drag shows in front of minors
State Sen. Dave Murman of Glenvil. (Zach Wendling/Nebraska Examiner)

Three other committee members, State Sens. Joni Albrecht, Tom Briese and Lou Ann Linehan, said they remain supporters of LB 575, which could be enough votes on the eight-member committee. 

State Sen. Rita Sanders of Bellevue, who has supported the bill, could not be reached for comment.

“Nebraska is not going to be the front of the line in doing this now,” Murman said. “Hopefully it won’t be the last.”

Linehan said the bill is more complicated than bathrooms and said she is waiting for schools to come up with some solution.

State Sen. Lou Ann Linehan of Elkhorn. (Zach Wendling/Nebraska Examiner)

“I’m supportive of the bill, but I want more input from the schools,” Linehan said. “I want to know what’s going on, what’s really going on.”

The other committee members — State Sens. Danielle Conrad of Lincoln, Lynne Walz of Fremont and Justin Wayne of Omaha — said they would not support advancing the bill.

Conrad said 2023 taught senators some “very painful lessons” of what happens when time and energy are spent on “harmful, divisive social issues.”

“My hope is that we will take a breath, enjoy some of our summers back home and with our family and friends, but then really get to work and really keep a laser focus on addressing those common sense, consensus issues that a majority of Nebraska voters want us to focus on,” Conrad said.

‘I don’t want to make anybody uncomfortable’

Trans youth that the bill would impact say the bill is in a line of attacks against their existence.

Maeve Malice, who is 18, said that as a Black trans woman, she knew bills such as LB 574 and LB 575 would come and had braced for their introduction.

Malice, a black belt in taekwondo, said the rhetoric that trans women are “dominating” in sports “straight up isn’t true.”

Malice is “already scared enough” to be perceived as a man, with broad shoulders and a deep voice.

“I don’t want to make anybody uncomfortable,” Malice said. “I’m just trying to live my life, but people don’t see me that way, and it’s kind of awful, but it’s my reality. And I’m doing everything I can to change that.”

Julian Murdoc Stokes, an 18-year-old recent graduate in Omaha, said providing gender neutral bathrooms, as some have suggested, does not solve the issue.

During his time in high school, Stokes said, he would have to go to a certain part of the school for the bathroom where he felt comfortable because using either the girls or boys bathrooms was unsafe. He said he was beaten up when he tried to use the boys room.

Stokes said gender neutral bathrooms are sometimes used by those who do not need them, and for those that do, it puts a target on their back.

But despite the year’s legislative fights and looming issues facing trans people, Stokes said they are proud of their identity and wouldn’t change it for anything.

“I’d rather die young and trans and happy than die old and miserable and someone I’m not,” Stokes said.


NSAA Gender Participation Policy

The NSAA oversees athletics and general activities for many public and private schools in the state. The association implemented its Gender Participation Policy in January 2016 and pushed back against a “sex at birth” rule that same year supported by former Gov. Pete Ricketts.

Transgender students wishing to utilize the outlined procedures must follow these steps:

  • Provide written notice to their home school that will determine whether the student meets the NSAA’s activity eligibility standards.
  • Apply for participation with the NSAA and complete a Transgender Student Application.
  • Provide affirming information of the student’s gender identity and expression, such as credible documentation from parents, friends or teachers “affirming the actions, attitudes, dress and manner” of the student’s identity.
  • Submit written verification from an appropriate health care professional affirming the student’s identity.

The NSAA’s Gender Identity Eligibility Committee must review the student’s application and must unanimously approve it. A physician with experience in transgender health care; a psychiatrist, psychologist or licensed mental health professional; a school administrator from a non-appealing school and an NSAA staff member compose the committee.

Transgender female students must also take one year of hormones or go through gender reassignment surgery, which will be banned for minors after Oct. 1, per LB 574.

Trans girls, in either case, must also demonstrate through a medical examination and physiological testing they do “not possess physical … or physiological advantages over genetic females of the same age group.”

This includes bone structure, muscle mass and testosterone hormonal levels.

Jay Bellar, current executive director of the NSAA, told the Examiner in January that five students have been approved for sports participation consistent with their gender identity since 2017. He could not be reached for comment this week on whether more students have used the policy in the past five months.


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Zach Wendling
Zach Wendling

Zach Wendling is a senior at the University of Nebraska-Lincoln, double-majoring in journalism and political science. He has interned for The Hill and The News Station in Washington, D.C., and has reported for the Nebraska News Service and The Daily Nebraskan.