Success of Nebraska proposal to restrict gender-affirming care might hinge upon amendment

LINCOLN, Neb. (Nebraska Examiner) — A potential second round of debate on a proposal to restrict some gender-affirming procedures in Nebraska will likely depend on the success of an amendment to narrow the bill.

Legislative Bill 574, proposed by State Sen. Kathleen Kauth of Omaha, would prohibit puberty blockers, hormone therapies and genital or non-genital surgeries for minors. Referrals for such care would also be prohibited.

Supporters of Kauth’s bill now look to amend the proposal to outlaw only surgeries for minors, if and when the bill is scheduled again for debate. State Sen. Mike Jacobson of North Platte said such an amendment is a necessary, “reasonable” compromise.

Legislators gave first-round approval to the original measure on March 23, 30-17, largely along party lines in the officially nonpartisan body. Opponents blocked consideration of the amendment throughout three days of debate and pledged to continue doing so.

State Sens. Jana Hughes of Seward and Tom Brandt of Plymouth voted present to advance the bill, while State Sen. Christy Armendariz of Omaha voted against it. All three first voted to end debate, giving supporters of cloture the minimum 33 votes needed. 

Hughes and Brandt indicated they could support LB 574 if it was amended, which may require a vote for cloture. It’s unclear whether Armendariz would change her position on the bill or if she would vote again to end debate.

“There isn’t one person in this body that doesn’t want to protect all kids, including transgender kids,” Jacobson said.

‘Watered-down version’

Opponents do not see the amendment as an acceptable compromise.

State Sen. Machaela Cavanaugh of Omaha said the amendment is just a “watered-down version” meant to assuage supporters’ guilt.

She has filibustered nearly every piece of legislation this year since Feb. 23 because of LB 574, sometimes on her own.

Cavanaugh said her position is not whether she believes gender-affirming care is appropriate for patients, it’s that she believes such a decision should be left to patients and their parents or guardians, in consultation with medical providers.

“This body is insistent upon legislating hate and taking away health care from a specific, targeted, minority population, and somehow it does not sink in to this body that you are committing a human rights violation by doing that,” Cavanaugh said in a March 29 floor speech.

Regulating medicine

State Sen. John Fredrickson of Omaha, a mental health provider, said the debate on LB 574 has been “so focused on the topic of queer youth” that senators have lost the bigger picture: attempts to regulate medicine.

“It is not our job to say this is what you can or cannot do in the field of practice that you have expertise in that we simply do not have,” Fredrickson said.

Anyone providing gender-affirming care, he said, will have a licensure board and must conform to standards of care and a code of ethics.

Jacobson said amending LB 574 would make the bill “benign.” 

He said this is because a doctor at Nebraska Medicine has told him that, on average, only three top surgeries (those dealing with breasts) are done a year for minors dealing with gender dysphoria.

A spokesman for Nebraska Medicine declined to comment on the numbers Jacobson offered but said gender-affirming surgery in minors is rare.

“Given the very low numbers of such procedures, we do not report this information publicly, in order to protect the privacy of individual patients,” a statement from Nebraska Medicine reads.

A spokesperson for the Nebraska Hospital Association said it’s unclear how many procedures specified by LB 574 may be impacted because most are self-paid.

The association’s data is based on claims made to private insurers and Medicare and Medicaid, though there is no data on how many gender-affirming procedures have been covered or are covered annually.

Dr. Alex Dworak and Dr. Elizabeth Constance, who both provide gender-affirming services, also stated such surgeries for minors are “extremely rarely done.”

Dworak said he has never referred a patient for surgeries.

Fredrickson said conversations about trying to quantify the care come back to regulating medicine.

“Any time we sort of place a value judgment on clinical care, that concerns me,” Fredrickson said. “I’m not here to place judgment on what someone’s medical needs may be.”

‘Err on the side of caution’

Hughes, however, questioned how many surgeries would be too many.

The line gets blurred between puberty blockers and hormone therapies and “incredibly permanent” surgeries, she said, though she believes parents when they say they’re doing the right thing for their children.

Hughes also believes all sides want to protect kids but said she wants to “err on the side of caution.”

Jacobson said LB 574 could provide legal protection for parents and providers. In rare cases, people who received gender-affirming care as minors later sue their parents or providers after reaching adulthood. 

In a Facebook post, Armendariz said she believes “first and foremost” in every family’s right to its freedoms and civil liberties. She said she wants to limit government involvement wherever possible, which “should be exercised with restraint.”

“I will not compromise my integrity and will make decisions consistent with the values of liberty and freedom that I campaigned on,” Armendariz said.

‘Lifesaving medical care’

Dworak, with One World Community Health Centers, said medicine is complex and solutions are not black-and-white or simplistic.

He said that counseling, blockers and hormones are the “foundation” for youths, alongside social affirmation, with many people not wanting or needing medicines at all.

To Dworak, the proposed amendment to Kauth’s bill is not a compromise.

“I think that sets a precedent that taking away some human rights and also telling doctors how to practice medicine by elected bureaucrats who have no medical training, just a little bit is OK,” Dworak said. “And it’s not.”

Kauth has called puberty blockers and hormone therapies “really dangerous” and “no good” and has criticized gender-affirming procedures as “experimental” or “irreversible.”

Dworak and Constance said those categorizations ignore best practices for such care with decades of research and study that support affirmation.

For example, 30 national and international organizations endorse gender-affirming care. The Nebraska Medical Association also opposes LB 574.

Dworak, Constance and Fredrickson said they know of patients and medical providers who have already left the state or are planning to do so because of LB 574.

A couple of medical professionals who testified at a public hearing for the bill said the fact that there is no control study for such procedures should raise concern. However, some state senators and other doctors have said there can be no control study because withholding the care would be unethical.

Constance, a reproductive endocrinologist, said her work most intersects with trans patients related to fertility, which can be affected by hormones. 

There are ways to extract sperm or eggs after treatments have begun, Constance said, though both she and Dworak noted there are some irreversible effects in addition to surgeries.

Dworak said he discusses all risks, benefits, data and literature with patients before the care, which requires parental consent at each step of the process for minors. He said at least one mental health provider, often more, is consulted throughout the care.

In addition, he said blockers are not provided until someone shows signs of puberty and when they are at a specific sexual maturity rating.

The care also hinges upon three factors, Dworak said, with patients needing to be insistent, consistent and persistent about their gender identity.

Kauth told the Nebraska Examiner she would have preferred to address blockers and hormones this year but will likely bring a measure to address both next year if they are amended out of the bill this year.

Constance also pushed back on claims that transitioning is new or a “fad” among teenagers. Multiple cultures and societies, for example, recognize more than two genders, she said.

“Writing these laws and limiting access to medical care is not going to make transgender people disappear or go away,” Constance said. “It’s just going to limit their access to lifesaving medical care.”

‘Moving the goalpost’

Jacobson said a larger fight is brewing in the Legislature than just the one over LB 574, though he wishes it were as simple as just the one bill.

He said he’s confident senators will battle over LB 626, a near-total abortion ban, and LB 575, another measure proposed by Kauth to define school bathrooms, locker rooms or sporting teams as either male or female and restrict them to sex assigned at birth.

Dave Murman, Education Committee chair, said he wants to advance LB 575 to the floor but is waiting, in part, to see what happens with the gender-affirming care legislation.

Murman said LB 575 will likely be debated early in 2024 if not this session.

“We’ve tried to be reasonable all through this process,” Jacobson said of LB 574. “But I also understand that when someone takes you hostage, they’re going to do it again and again and again.”

Jacobson has accused opponents of “moving the goalpost,” pointing to a defeated abortion ban in 2022 as being short by one vote, then returning this year with concessions.

State Sen. Megan Hunt of Omaha said on the floor that Jacobson’s categorization is “rich.” 

She noted that every senator who voted to end debate on LB 574 also voted to change the rules to restrict some procedural motions.

“Everything is projection,” Hunt said on March 29. “Look in the mirror. Look at yourself. Who is moving the goalpost? I said six weeks ago, we said six weeks ago, LB 574 can’t pass. It deserves to be treated like the bill that it is.”

‘There is a chance’

With procedural motions now limited, it remains to be seen what opponents will do as they seek to block the amendment.

State Sen. Steve Erdman of Bayard, chair of the Rules Committee, said Kauth’s amendment will likely be put up for consideration sometime during the four hours allotted for debate, even with the procedural motions. The question, then, may be how long the priority motions are debated.

Cavanaugh said she remains an “eternal optimist” and will continue to encourage votes against LB 574.

“I will continue to try to change the hearts and minds of my colleagues as long as there is a chance left,” Cavanaugh said. “And until it is signed into law, there is a chance.”

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