Nebraska lawmakers file ‘minority statement’ ahead of debate on transgender healthcare bill
Nebraska lawmakers on Friday filed a minority petition — a never-before-used tactic — against a law that would limit what gender-proved minors can receive in the state.
State Senators Machaela Kavanaugh and Jen Day, both from Omaha, issued statements ahead of the debate on Proposition 574 on Tuesday.
Called “The Let Them Grow Up Act,” the bill, proposed by State Senator Kathleen Caut of Omaha, would ban procedures or refer patients for procedures such as puberty blockers, hormone therapy, or genital or non-genital surgeries under the age of 19.
Doctors who violate the law will be held administratively liable.
The roughly four-page rebuttal by Kavanaugh and Day, members of the Health and Human Services Committee, functions similarly to a dissenting opinion in a lawsuit.
Speaker John Arch (center) and Assembly Secretary Brandon Metzler (right) speak with State Senator Julie Slama in front of the Legislature during their session Wednesday, March 15, 2023, in Lincoln, Nebraska. (Zach Wendling/Nebraska Examiner)
State Senator John Arch of La Vista, Speaker of the Legislature, announced Thursday that debate on LB 574 would begin Tuesday, an agreement he made with Kavanaugh to move on to future issues. Prior to this shift, Kavanaugh had been franchising for 13 consecutive days.
“We both agreed that it would be best to stop discussing this issue with other bills and discuss the bill itself,” Arch said on Thursday.
Legislative Assembly Secretary Brandon Metzler confirmed Friday that while minority statements or concurring statements have been discussed in the past, they have never been used.
“We’ve never seen it done, but basically it’s an opportunity to add your individual thoughts to the piece of legislation coming out of the committee that you can agree with or disagree with the majority,” Metzler said.
History in progress
The Nebraska Examiner received a copy of the minority statement on Friday. Metzler said it might not be available on the Legislative Assembly website until Tuesday morning.
Several sections of the statement note that organizations including the Nebraska Medical Association and the American Medical Association have determined that gender-affirming care, which will be outlawed by LB 574, is best practice.
“These professionals and associations testified against these findings at the committee hearings on the bill,” reads one section. “Members of the Minority Committee object to the current form of this section because it does not reflect the generally accepted medical or scientific consensus. The Committee’s discussion of amendments or clarifications to this section was not approved by a majority.”
State Senator Kathleen Caut of Omaha introduces her bill to limit what gender-affirming care under 19 can get on Wednesday, February 8, 2023, in Lincoln, Nebraska. (Zach Wendling / Nebraska Examiner)
Almost every section ends with these last two sentences.
Kaut cited opposing studies, including people who switched but later regretted their decision.
Day said Kavanaugh started the conversation about the minority statement, a tool to counter what she said has been an imbalance in leadership positions and committee appointments since the session began.
The statement also serves as a legal document as similar legislation has faced legal challenges across the country, Day said. Those issues include a similar law in Arkansas, which is currently blocked while pending lawsuits play out.
The committee voted to move the proposal forward, splitting along ideological lines: State Senator Ben Hansen of Blair (committee chairman), Brian Hardin of Gering, Merv Ripe of Ralston, and Beau Ballard of Lincoln voted in favor. Kavanaugh, Day, and State Senator Lynn Walz of Fremont voted against the move.
Walz did not draft a minority statement with Kavanaugh or Day. She could not be contacted for comment on Friday.
Hansen said he was “not surprised” that Kavanaugh and Day applied, adding that much of what is included the couple have already discussed.
He disagreed that there were no discussions, that Kavanaugh and Day simply did not have the votes to amend the bill.
Kavanaugh and Day write that they have questions about how the term “send” is used, including whether it is spoken or written, informal or formal.
“[LB 574] can easily be used to trap a medical practitioner who is not familiar with this area of practice and simply suggests another specialist for advice,” the minority said in a statement.
The senators also object to a clause prohibiting the directing of public funds to organizations that perform such prohibited procedures on minors. Kavanaugh and Day say the federal government has recognized gender-affirming care as eligible for several categories of Medicaid, requiring “no discriminatory practices” in state programs.
Law LB 574 allows individuals to bring a civil action against practitioners who provide procedures “within 2 years from discovery of damages”. Kavanaugh and Day said it’s not clear if this has anything to do with when the procedure is done.
The pair also write that LB 574 will make “profound changes” to the practice and certification of various healthcare professionals and will not include compliance with the Certification Review Program or “Process 407” required of the Legislature.
How filibuster works
A senator can stall debate by filing priority motions, such as a motion to resubmit a bill to committee or to defer a bill to a later date, which is a way to strike down a bill. Such priority proposals must be considered immediately and given time for the submitting senator to speak for 10 minutes and for others to discuss for three five-minute segments.
If such postponement motions are not granted, the senator may file a motion to reconsider the results of the vote, resulting in an increase in time.
Eventually, after eight hours of debate, a senator can ask for a “closing” of the proposal to end the filibustering and immediately vote to move the bill forward. Because the Legislature only debates in the morning, this delaying tactic could delay the bill’s motion by up to three days.
Former state senator Ernie Chambers of Omaha was a master of piracy, using it to delay bills he opposed and forcing the Legislature to compromise with him.
A few years ago filibusters were a rarity in the Legislative Assembly. Without a filibuster, a bill needs 25 votes to pass – a majority in the 49-seat unicameral parliament. But filibusters are now commonplace for any controversial bill introduced by both Liberals and Conservatives, meaning it takes 33 votes, or two-thirds of the total, to pass a measure.
Filibuster will resume on Tuesday
State Senator Julie Slama of Dunbar on Wednesday moved a no-confidence motion to Kavanaugh for saying laws like LB 574 would result in the genocide of transgender people.
Kavanaugh told The Examiner on Friday that “things seemed to be approaching a tipping point” and she was eager to change her approach.
“The best thing for the trans community and their families is to have [LB 574] defeat, and then we can all move forward,” Kavanaugh said.
If that happens, Kavanaugh said, it doesn’t mean she won’t be stealing from the law in this session anymore. It will simply be “accounts that I usually steal.”
Kavanaugh said “everything is worth it” to save the lives of children, especially transgender Nebraskas who face higher rates of suicide and bullying.
There are no “pretty confident” votes
Debate on LB 574 is likely to last until mid Thursday morning due to afternoon hearings. After eight hours, Caut can file a motion to end debate, which requires 33 votes.
Kavanaugh and Day said on Friday they believe it won’t happen, and Kavanaugh is “sure.”
“Assume the transgender bill fails and the anti-affirmation exit bill fails at shutdown, then hopefully we as a legislator can move forward and stop trying to legitimize hate,” Kavanaugh told CNN’s Jake Tupper in Friday (another one in a handful of national media outlets). Kavanaugh’s performances after filibustering).
Day said the effort is against the bill, but noted that things can always change “in a matter of minutes.”
“We feel pretty confident going into this debate that Senator Coute has no votes, but there’s no guarantee of that,” Day said.
Kaut is ready for the “hard battle” of the debate
So far, 23 senators have signed up for LB 574, including one Democrat in the officially non-partisan Legislative Assembly. If this support continues, Kauta will need nine more votes.
Kaut noted that it was “quite possible” that she would not get 33 votes.
“It’s going to be an uphill battle,” Kaut said on Friday. “It’s a very, very tough, tough discussion.”
She pointed to other priority laws by state senator Johnny Albrecht of Thurston on abortion, Lou Ann Linehan on school funding, and Tom Brewer of Gordon on guns, and said that LB 574 is just the “first round” of discussion.
Caut added that the LB 574 debate could have taken place in February, and the filibustering led by Kavanaugh “really just delayed the inevitable and wasted a lot of time.” She said bipartisan bills may not be considered in this session due to these actions.
In a statement to CNN, Kout said that Kavanaugh’s words that she doesn’t care if anything is done during this legislative session “reflect a complete disregard for the citizens of Nebraska.”
“By postponing the debate because of the filibuster, Senator Kavanaugh has made it impossible for us to hear bills on many topics,” Kaut said. “It was a selfish calculation to draw attention under the false guise of protecting gender dysphoric youth at the expense of our constituents.”
Nebraska Examiner senior reporter Paul Hammel contributed to this report.
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