Gov. Pillen approves Nebraska gender care regulations

LINCOLN — Gov. Jim Pillen approved the final rules and regulations for Nebraska’s gender care law Tuesday, ending the administrative process as a legal challenge continues to play out.

Pillen, in a news release, announced the approval of Nebraska Department of Health and Human Services regulations for puberty blockers and cross-sex hormones. The restrictions apply to Nebraska minors under 19 years old and will take effect in five days, per state law.

The final rules supersede temporary regulations that were set to expire at the end of the month.

“Nebraska’s kids are our future,” Pillen said in a statement. “They deserve the opportunity to grow up and develop to their full, God-given potential.”

Pillen said the state must protect children from “potentially irreversible and regrettable decisions — decisions for which they may not completely understand the consequences” — and thanked lawmakers for passing Legislative Bill 574 last year to enact the requirements.

Multiple doctors providing the care have disagreed that all treatments are reversible and say that patients who receive the care understand and do not regret their decisions. They’ve also maintained that the regulations, as written, are unclear.

Any patient who began treatments for gender nonconformity or gender dysphoria prior to Oct. 1, when the law took effect, is exempt from the new regulations. 

The law immediately prohibited transition surgeries for minors when it took effect.

‘They deserve a lot better’

Grant Friedman, ACLU of Nebraska legal fellow, said the governor’s approval means state leaders “decided to flatly ignore” serious concerns raised by those impacted by the regulations. This includes transgender youths and providers who blasted the regulations for potentially delaying care by at least five months to a year, if not more.

“To be clear, we are talking about gender-affirming care that is endorsed by major medical organizations and recognized as often life-saving care,” Friedman said in a statement. 

Friedman added that families have already struggled to access the care under the temporary regulations and will continue to do so under the “discriminatory final regulations.” 

“Trans youth deserve access to gender-affirming care, and they deserve a lot better than this,” Friedman added.

‘I hope that it helps kids’

State Sen. Kathleen Kauth of Omaha, who introduced LB 574 last year, maintained Tuesday that the medications involved are dangerous and that current guidelines enforced by organizations such as the World Professional Association of Transgender Health are rooted in advocacy. 

More than 30 international and national organizations endorse the care for minors.

“I’m pleased that the process is over,” Kauth said. “I hope that it helps kids.”

LB 574, as introduced, would have banned puberty blockers and cross-sex hormones for all minors, which Kauth has said remains her preferred outcome. 

She will “keep an eye” on the law to see if any tweaks are needed.

There is no plan to regulate adult care, a commitment Kauth first made last year and stood by Tuesday.

Final regulations requirements

Under the final regulations, youths must receive at least 40 hours of “gender-identity-focused contact hours of therapy” before the prescription of puberty blockers or cross-sex hormones.

These clinical hours must:

• Be clinically objective and non-biased.
• Assess factors contributing to the patient’s presenting emotions, actions and beliefs.
• Not merely affirm the patient’s beliefs.

Some mental health providers have questioned the legal definition of “gender-identity-focused contact hours” — which are mandated but not defined in state law — and how they should address patients’ contributing circumstances if they must focus on their gender identity. They have also argued the 40-hour goal changes the desired outcome of therapy.

A patient may not bank more than two hours of such gender-identity-focused therapy in a week toward the hourly goal, though an initial assessment may be up to four consecutive hours.

Youths must live primarily as their preferred gender for at least six months and, after meeting the hourly requirement, complete at least one related therapy hour every 90 days during ongoing treatment.

The regulations stipulate how to receive informed patient consent, establish a seven-day waiting period between consent and prescription and mandate that all injectable treatments must be performed in a doctor’s office.

Legislative oversight unclear

State lawmakers and physicians have sought more clarity on the regulations, but state chief medical officer Dr. Timothy Tesmer and DHHS rebuffed an invite to a Feb. 29 legislative briefing as Attorney General Mike Hilgers and his office reviewed the regulations. They said they could not comment during the legal review.

State Sen. Ben Hansen of Blair, chair of the Health and Human Services Committee, delegated the drafting of such regulations to the state chief medical officer and DHHS.

Hansen said two weeks ago that communication among different branches of government can be difficult but hoped the two branches could begin to communicate more.

Asked whether the HHS Committee will request a new briefing now that the regulations are approved, Hansen said in a text: “I did not plan on it.”

Hansen said he possibly may consider alternatives to a public briefing and will be in contact with the executive branch soon.

ACLU will ‘explore all options’

The ACLU are challenging LB 574 in court, arguing that the bill, after lawmakers attached a 12-week abortion ban, violated the Nebraska Constitution’s “single subject” provision.

The Nebraska Supreme Court considered oral arguments related to the challenge on March 5 and could rule at any time.

“As we await the Nebraska Supreme Court’s decision, our team continues to explore all options to ensure that trans youth have access to the care they need,” Friedman said.

No other known legal challenges have been filed against LB 574.