Nebraska gender care restrictions take effect Sunday with little guidance, no regulations

Gov. Jim Pillen said he would “thoroughly review” any emergency regulations that could allow care to continue after Oct. 1 in lieu of final rules

By: - September 29, 2023 5:00 am

Nebraska lawmakers of both parties watch the final vote to advance and send LB 574 to Gov. Jim PIllen’s desk for approval on Friday, May 19, 2023, and block the public view of State Sen. Julie Slama of Dunbar. (Zach Wendling/Nebraska Examiner)

LINCOLN — Restrictions on health care for transgender minors in Nebraska are set to take effect Sunday, but they’ll come with little guidance and without a timeline for future rules and regulations.

Dr. Timothy Tesmer testifies during his confirmation hearing May 25. (Zach Wendling/Nebraska Examiner)

The state’s chief medical officer, Dr. Timothy Tesmer, has been charged with drafting rules and regulations around puberty blockers and cross-sex hormone therapies for people before age 19. This “Let Them Grow Act” included in Legislative Bill 574, proposed by State Sen. Kathleen Kauth of Omaha, takes effect Sunday, Oct. 1.

As of Friday morning, it’s unclear when permanent or temporary regulations could come.

Genital or non-genital transition surgeries will be prohibited for minors as of that date. Non-surgical treatments beyond blockers and hormones, including therapy, are not prohibited.

New patients cannot receive puberty blockers or hormones until new rules are in place; minors who started the treatments can continue only their specific care.

Currently, the Nebraska Department of Health and Human Services is utilizing internal medical, psychological and behavioral health specialists to craft the regulations. Their identity will be kept confidential “to ensure that the process is not impeded,” a DHHS spokesperson said.

While the permanent rules and regulations will take more time, Tesmer is allowed to issue emergency regulations over the interim subject to Gov. Jim Pillen’s approval.

‘I know people are hurting’

Tesmer, an ear, nose and throat doctor, said May 25 at his confirmation hearing that the final rules will not rest “on the shoulders of the chief medical officer” but on a team of multidisciplinary health care providers. He said the rules would be evidence-based, reasonable and time-efficient but as thorough as necessary.

State Sen. Machaela Cavanaugh of Omaha questions Dr. Timothy Tesmer during his confirmation hearing May 25. (Zach Wendling/Nebraska Examiner)

“I know the nature of this issue,” Tesmer testified. “I get it. I know people are hurting. We want to do the right thing within the guidelines of the law that’s now been enacted.” 

Tesmer committed at his hearing to update the Legislature’s Health and Human Services Committee on the ongoing LB 574 regulations process. State Sen. Machaela Cavanaugh of Omaha, who led a near-session-long filibuster against LB 574, wrote to Tesmer requesting such an update and an explanation of the work being done to carry out the law.

“As families prepare for these sweeping changes in their children’s health care, what can they expect to come into effect this Sunday?” the letter reads.

The request seeks information on the involvement of medical experts in this field of care, a timeline for the production of the work, any possible draft language and an explanation of how recommendations and standards of care from national medical organizations are being incorporated.

The regulations process requires a public hearing and final approval by Attorney General Mike Hilgers and Pillen. At least 30 days must lapse between proposed rules and a hearing, which is expected by year’s end. All public comments will be reviewed.

State Sen. Kathleen Kauth of Omaha. (Zach Wendling/Nebraska Examiner)

“The Department will attempt to minimize any time between when the law takes effect on October 1 and the enactment of emergency regulations,” a DHHS memo on LB 574 reads.

A spokesperson for DHHS reiterated the attempts to minimize such a delay but could not offer a more specific timeline or specify what materials Tesmer is reviewing.

A spokeswoman for Pillen said the governor trusts Tesmer will draft the required LB 574 regulations “in the interest of public health and welfare.”

“The Governor will thoroughly review any emergency regulations presented to him,” she said in an email.

‘There’s a blueprint out there’

State Sen. John Fredrickson of Omaha, a mental health practitioner and one of two openly LGBTQ state lawmakers, said the fact DHHS has had four months to prepare regulations with little communication shows the law is partisan and political.

State Sens. George Dungan, John Fredrickson and Merv Riepe, from left to right. (Zach Wendling/Nebraska Examiner)

“It’s really unfortunate because Nebraskans and Nebraska families have been in anguish in this waiting process, and they are suffering as a result of this,” Fredrickson told the Examiner.

This spring, Fredrickson and State Sens. John Cavanaugh of Omaha and Lynne Walz of Fremont were three opponents working with Kauth and other senators to draft an amendment to LB 574. While initially described as “negotiations,” Kauth said the meetings were “listening sessions.”

Fredrickson, John Cavanaugh and Walz drafted an alternative proposal that would have offered specific guidelines. Instead, the Legislature delegated the authority to the chief medical officer through a different amendment.

“We tried to address each and every single one of those concerns in a very specific and enumerated way, and I haven’t heard a peep from Tesmer or anyone about those efforts,” Fredrickson said. “There’s a blueprint out there.”

State Sens. Lynne Walz of Fremont, at left, and John Cavanaugh of Omaha. (Zach Wendling/Nebraska Examiner)

Tesmer told Walz at his confirmation hearing he would be willing to look at the alternate proposal but has to “apply that to the boundaries of the context of the law.” The DHHS spokesperson declined to state whether those guidelines have been consulted.

In March, while chair of the State Board of Health, Tesmer joined a letter in support of LB 574 that at the time included a full ban on surgeries, blockers and hormones.

Central standard of care

State Sen. Jana Hughes of Seward told the Examiner in May that she would contact Tesmer regarding the draft proposal from Walz, John Cavanaugh and Fredrickson. However, she said Wednesday, she has not yet done so.

State Sen. Jana Hughes of Seward. (Zach Wendling/Nebraska Examiner).

Asked whether she would consider contacting Tesmer, Hughes said yes, she would. She described the proposal as “fairly reasonable” and a possible starting point for Tesmer.

Hughes said what put her “over the edge” in support of LB 574 was Planned Parenthood’s process around blockers or hormones. The organization utilizes an informed consent model, and Hughes said it was possible youths could receive treatments without needed mental health counseling.

It’s not that every practitioner is violating best practices, Hughes added, but LB 574 is for every provider to follow those standards of care. 

“I would argue there are people out there doing it the correct way,” Hughes said. “But we’ve got to stop the ones that are not doing it the correct way because we’ve got to protect the kids.”

Evidence for treatments

There is uncertainty as to what comes next, and a “chilling effect” has taken hold, according to Dr. Alex Dworak of OneWorld Community Health Centers. He said he knows of five trans adults who have already left Nebraska and knows of more families looking to leave for care.

Dr. Alex Dworak testifies against LB 574 at its public hearing Feb. 8. (Zach Wendling/Nebraska Examiner)

Dworak said he’s been consulting patients and working to figure out at what stage of care they’re ready for. He’ll operate within the bounds of the law, he added, and he’s been open with patients about his uncertainty in the months ahead.

During the COVID-19 pandemic, Dworak said, he saw people die despite having no risk factors, yet he said he “never wavered” in his commitment to providing care to those in need.

It wasn’t until this year that he started questioning his role in Nebraska.

“The prospect of leaving my wife a widow and my children orphans did not for a moment sway me from practicing medicine here in Nebraska,” Dworak said. “It took Senator Kauth to do that.”

Dworak disagrees with Kauth’s assessment that there is a “lack” of evidence-based support for the care as he’s sent studies to Tesmer. Dworak also uses guidance in helping the patients he cares for from the Fenway Medical Center in Boston or through literature and research from The Journal of Pediatrics, American Medical Association and Endocrine Society.

Thirty national and international medical associations endorse gender-affirming care.

“If you’re cherry-picking then there isn’t, but if you’re looking at the actual work being done by and with the trans community, there’s a lot,” Dworak said.

‘Would be nice’ to have guidance

State Sen. Ben Hansen of Blair. (Zach Wendling/Nebraska Examiner)

State Sen. Ben Hansen of Blair brought the final amendment to LB 574, which went a step farther: restricting abortion at 12-weeks gestational age. 

Hansen, chair of the Health and Human Services Committee and who helped in the “listening sessions,” said it was not his intention to have a full ban Oct. 1. Instead, his efforts put a final decision in the hands of a medical professional, a concern among opponents. 

Hansen’s amendment shored up support for at least one lawmaker: State Sen. Merv Riepe of Ralston. Riepe effectively doomed a more restrictive abortion measure this spring but worked on LB 574 in private for the 12-week ban. He’s said abortion was a greater concern to him

Riepe said it’s difficult to have the gender restrictions take effect without guidance.

State Sen. Merv Riepe of Ralston questions Dr. Timothy Tesmer during his May 25 confirmation hearing. (Zach Wendling/Nebraska Examiner)

“I have all the due respect for the medical director from DHHS because that was a hard task and to put that together,” Riepe said. “But it would be nice before something goes into law that you in fact know what the rules of engagement are.”

There’s some talk of a possible committee hearing for Tesmer to provide an update, Hansen said, but they “haven’t gotten that far yet.”

Kauth said she has yet to meet Tesmer and the Legislature is not involved in the rule process. She said youths experiencing gender dysphoria should seek counseling, understand the causes of their concerns and deal with underlying mental health issues or challenges with puberty.

“Understand that what you feel like today may very well change,” Kauth said in a text. “Making permanent changes to your body before your brain can fully understand the ramifications could very well make your mental health worse.”

Tesmer and Pillen know one another

Gov. Jim Pillen moments after signing LB 574 into law May 22. (Zach Wendling/Nebraska Examiner)

In May, the Examiner asked Pillen what his guidance would be to Tesmer, and Pillen said he’s known Tesmer a long time and Tesmer has practiced in the state for over 35 years.

“He knows Nebraska,” Pillen said during the LB 574 signing ceremony. “He understands that his job is to carry out the law that has been signed in, and that’s what we expect him to do.”

Asked by another reporter whether the law could override family’s wishes, Pillen said the law protects and allows children to make decisions on their own when they are of age.

“We believe in protecting our kids, making sure that they — parents and kids — don’t get duped in the silliness that if you do this, you’re going to become happy,” Pillen said. “That is absolutely Lucifer at its finest.”

LB 574 continues to be challenged in court on appeal to the Nebraska Supreme Court on the argument it violates the state’s single subject clause.

Care was ‘lifesaving’

Jessie McGrath throws a kickball during a queer field day Aug. 27 in Omaha. (Zach Wendling/Nebraska Examiner)

Jessie McGrath, one of Kauth’s constituents in the Millard-area, said gender-affirming care was lifesaving for her as there were days she no longer wanted to live. The care allowed her to give up antidepressants and provided an opportunity to be comfortable.

McGrath described much of the pushback on trans people as rooted in religious belief and bigotry and that biological mutations show there are more than two genders.

“To bury your head in the sand and pretend that trans people don’t exist, that we don’t have medical issues, that we don’t have issues that can be addressed, is just short-sighted,” McGrath said. “In many cases, I think it’s just bigotry. It’s something that they don’t understand, they don’t want to understand it, and so it’s just easier to attack it than it is to understand it.”

 

Kauth discusses trans identity, LB 574 on podcasts

State Sen. Kathleen Kauth of Omaha, author of Legislative Bill 574 for restrictions on gender care for minors, recently appeared on two podcasts with an Australian health practitioner: one July 20 and the other Sept. 16.

Among the episode topics, Kauth discusses the identity of trans people, LB 574 and the concept of misgendering. She states that anyone who calls themselves a different gender than “a biological sense” are the ones misgendering.

“Just because you want to be something different doesn’t mean you are,” Kauth said in the July episode.

Kauth in the September episode names one constituent by name, Jessie McGrath, who is considering a possible 2024 challenge to Kauth. McGrath is considering her options but has made no formal announcement; Mary Ann Folchert, a former teacher, has announced a run.

McGrath, a Nebraska native who recently returned to Nebraska after decades as a prosecutor in California, is trans, and Kauth states she will never call her a woman. Kauth adds that “the media will slaughter me” about that stance, but she has a “duty to truth.”

McGrath said Kauth’s comments are difficult to hear and show “she does not have a basis in reality for what she is saying.”

“In my life, no one goes around calling me a man,” McGrath told the Examiner. “They see how I live, how I interact with everyone and nobody sees me that way.”

Asked whether there is such a thing as a transgender person, Kauth said, “There are absolutely people who believe they should be the opposite sex — but wanting to be viewed differently than your actual sex does not in fact change your sex.”

Three of Kauth’s colleagues — State Sens. Ben Hansen of Blair, Jana Hughes of Seward and Merv Riepe of Ralston — said the following based on Kauth’s specific podcast comment:

  • Hansen: Anyone can make decisions about themselves or their body as an adult “as long as it doesn’t affect my civil liberties.”
  • Hughes: Everyone should be welcome and a disagreement with someone’s choices or lifestyle does not mean they have to be driven away.
  • Riepe: There is only one of each person in the whole universe and there are people born with genitals that don’t fit their biological DNA. He said he “can’t dictate what someone’s background is, what their circumstances are.”

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Zach Wendling
Zach Wendling

Zach rejoins the Nebraska Examiner after studying abroad in Antigua, Guatemala, following a yearlong Examiner internship. His coverage focus areas have included politics and government, health and well-being and higher education.

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