Zach Wendling
LINCOLN — A state lawmaker is formally challenging Nebraska’s rules and regulations on gender care treatments for transgender youths and minors with gender dysphoria.
State Sen. Machaela Cavanaugh of Omaha, who staunchly opposed Legislative Bill 574 that granted the rulemaking authority in 2023, has issued a letter to State Sen. Ray Aguilar of Grand Island objecting to the regulations. Aguilar chairs the Legislature’s Executive Board, the highest-ranking committee that oversees internal affairs.
Under state law, any state senator can challenge a set of rules or regulations if they feel it is unconstitutional, inconsistent with legislative intent or “creates an undue burden in a manner that significantly outweighs its benefit to the public.”
State Sen. Kathleen Kauth of Omaha sponsored LB 574, the “Let Them Grow Act,” which Cavanaugh fought throughout the 2023 legislative session. That opposition brought the legislative process to a crawl.
Cavanaugh said in her letter that the gender care regulations impose significant barriers to the treatments — primarily puberty blockers and cross-sex hormones — on the basis of gender identity. She said the regulations represent a “profound injustice.”
“The regulations, motivated by animus toward the affected class, undermine their right to life, liberty and the pursuit of happiness,” Cavanaugh wrote to Aguilar, referring to the Nebraska Constitution’s Bill of Rights. “Access to necessary health care is a fundamental aspect of these rights, determined by the individual, their medical provider and their family.”
History of the regulations
LB 574 set out a minimum four-part standard for eventual regulations that the state’s chief medical officer, Dr. Timothy Tesmer, would need to adopt:
- A minimum number of “gender-identify-focused” hours of therapy.
- Patient advisory requirements.
- Patient medical documentation requirements.
- A minimum waiting period between informed patient consent and the administration, prescription or delivery of such medications.
The final regulations from Tesmer and the Nebraska Department of Health and Human Services mandated at least 40 hours of clinically objective and non-biased gender-identity-focused therapy, required youths to live primarily as their preferred gender for at least six months and imposed a seven-day waiting period between informed patient consent and prescription.
No more than two hours per week of therapy can be banked, pushing the minimum timeline to at least five months. Injectable medications are required to be performed in a doctor’s office.
LB 574 took effect Oct. 1, 2023, alongside emergency regulations. Gov. Jim Pillen approved the final, slightly modified set of regulations March 12, and the regulations took effect five days later.
Similar concerns already aired
Many of the concerns Cavanaugh shared in her letter mirror those that transgender Nebraskans and their providers told DHHS officials about at a 12-hour hearing last November. Transgender youths and mental health providers shared similar concerns with the Nebraska Examiner.
Cavanaugh said she’s heard from many of those same testifiers since the regulations took effect. She said she filed the complaint as soon as she could after learning this summer of the law to challenge a regulation.
Cavanaugh’s letter cites the federal Civil Rights Act of 1964 and the Nebraska Constitution in stating that the regulations delay care and “ignore the specific clinical needs of transgender individuals.” Cavanaugh said the set of guidelines also “disregards the urgency and individualized nature of treating gender dysphoria.”
For example, Cavanaugh said, requirements are different for patients with gender dysphoria compared to requirements for other patients who use puberty blockers and hormones for non-gender-dysphoria-related reasons.
Kauth and others have argued there needs to be extra care for youths before deciding whether they should be prescribed puberty blockers or cross-sex hormones that will impact them for the rest of their lives. LB 574, as introduced, would have banned the medications before age 19.
Complaint referred to legislative committee
Aguilar, reached Thursday, said he will refer the complaint to the Legislature’s Health and Human Services Committee, of which Cavanaugh is a member.
“Nobody’s ever come to me and said anything about it,” Aguilar said about the set of regulations. “I just want to leave it alone.”
Under the law, if the Health and Human Services Committee concludes “that the complaint has merit,” it can take various steps, such as requesting:
- A description of the regulations.
- An explanation of how the regulations abide by legislative intent and the state and federal constitution and are “not an undue burden.”
- A statement on why the regulations are necessary.
- An explanation on how public comment was taken into consideration by the agency with respect to drafting the rules and regulations.
DHHS would need to respond within 60 days, should the committee make such a request.
State Sen. Ben Hansen of Blair, who chairs the committee, was also the key lawmaker who wrote the final amendment to LB 574, delegating the regulations to the chief medical officer. He did not respond to a request for comment Thursday.
Kauth said she was reviewing the complaint letter and had no immediate comment. A spokesperson for DHHS said the agency promulgated regulations “in accordance with the law.”
Senator vows to continue fighting
The HHS Committee, with support from Hansen and Cavanaugh, requested an in-person briefing from Dr. Tesmer on Feb. 29. He did not show up. The agency’s chief legal officer said Tesmer had to “respectfully decline” because the Nebraska Attorney General’s Office was at the time reviewing the regulations.
Cavanaugh had withdrawn another bill this year to repeal LB 574 in exchange for the briefing, which she said was to get more clarity. She said Thursday she will keep fighting.
“I will continue to use every tool available to me to advocate for and fight for transgender youth and all youth in Nebraska and across the country,” Cavanaugh said in a phone call. “As soon as I realized that I had this tool available to me, I found a way forward to utilize it.”
The U.S. Supreme Court is poised to take up a similar case dealing with treatments for youths with gender dysphoria in its next term this fall, on an appeal from the 6th U.S. Circuit Court of Appeals. The appeal deals with prohibitions on care in Kentucky and Tennessee.
The 8th U.S. Circuit Court of Appeals is in the process of weighing an appeal from Arkansas after a federal judge struck down a related gender care law in June 2023. Nebraska is part of the 8th Circuit, and Nebraska lawmakers said they would be watching for the 8th Circuit decision.