Some Nebraska senators are raising concerns about the legality of the gender-affirming care ban

OMAHA, Neb. (Nebraska) – On the second day of the three-day debate on LB574, some state senators raised concerns about the legality of the bill opposing gender-affirming youth assistance.

State Senators Danielle Conrad and George Dungan III of Lincoln, both attorneys, raised legal concerns on Wednesday about the bill dubbed the “Let Them Grow Act.”

“You’ll throw away the Constitution,” Conrad said. “You will throw away your conscience. You will throw this institution out to pursue an obnoxious and divisive national playbook. And congratulations, you’re doing it.

Dungan said the bill has “a number of problems”.

“It violates the equal protection clause, the due process clause, the First Amendment,” he said. “No one wants to talk about it; but we have to talk about it”.

Questions have been raised about the legal challenges LB574 could face if approved.

These senators may feel their arguments are falling on deaf ears, a sentiment echoed by state Senator Steve Erdman of Bayard.

“We could discuss it until June 9 and nobody will change their mind,” he said.

The federal courts are listening; a similar law in Arkansas is suspended.

“That law was determined by the courts to essentially not go into effect because it had a number of problems,” Dungan said.

The attorneys argued that the Arkansas law violated the equal protection clause in the Constitution that allows care for cisgender children but prohibits equal care for transgender children.

A district court blocked the law in 2021, and the U.S. 8th Circuit Appeals upheld the decision after an appeal.

UNL Assistant Professor of Law Kyle Langvardt explained the legality of LB574.

“This is a law that is at least arguably gender discriminatory,” she said.

Under the proposed bill, if a biological woman needed to have her breast tissue removed to transition for gender-affirming care, she would be banned, she said. However, if a biological male needed the same tissue surgery for another purpose, this would be permitted.

State Senator Jen Day of Omaha asked about the situation with breast implants. If a biological woman under 18 wanted breast implants, this is legal with parental consent. If a biological male wanted to transition breast implants, this would be prohibited by the bill.

“This law, on the face of it, discriminates on the basis of gender,” Dungan said.

Other legal issues Langvardt raised with the bill include the violation of a doctor’s First Amendment right and the basic right to care for one’s child.

“Many laws regulate speech in various ways, but one thing government usually can’t do is regulate speech based on the point of view behind that speech,” he said.

The debate continues on the floor, but potential legal concerns also persist.

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