Some Nebraska senators have raised concerns about the legality of the ban on gender-affirming women.
OMAHA, Nebraska (Nebraska). On the second day of the three-day debate on LB574, some state senators raised concerns about the legitimacy of a bill targeting gender-affirming youth care.
On Wednesday, state senators Daniel Conrad and George Dungan III of Lincoln, both lawyers, raised legal concerns about the bill, dubbed the “Grow Up Act.”
“You will throw away the Constitution,” Conrad said. “You will drop your conscience. You will drop this institution to follow a hateful, divisive national play. And congratulations, you’re doing it.”
Dungan said the bill had “a number of problems”.
“This violates the Equal Protection Clause, the Due Process Clause and the First Amendment,” he said. “Nobody wants to talk about it; but we need to talk about it.”
Questions are being raised about the legal problems LB574 is likely to face if accepted.
These senators may feel like their arguments are being ignored, a view echoed by State Senator Steve Erdman of Bayard.
“We can discuss this until June 9th and no one will change their mind,” he said.
The federal courts are listening; a similar law in Arkansas has been shelved.
“The courts have determined that this law will not essentially go into effect because it has a number of issues,” Dungan said.
Lawyers argued that the Arkansas law violated the Equal Protection Clause in the Constitution allowing care for cisgender children but prohibiting the same care for transgender children.
The district court blocked the law in 2021, and the US 8th Circuit of Appeals upheld the decision on appeal.
UNL Assistant Professor of Law Kyle Langwardt explained the legality of LB574.
“This is a law that is at least possibly gender discriminatory,” he said.
According to him, under the proposed bill, if a biological woman needs to have breast tissue removed in order to switch to sex-confirmation treatment, it will be prohibited. However, if a biological male needed the same tissue surgery for a different purpose, it would be allowed.
Omaha State Senator Jan Day asked about the situation with breast implants. If a biological woman under the age of 18 wanted breast implants, it is legal with parental consent. If a biological male would like breast implants to transition, this would be prohibited by the bill.
“This law, at first glance, discriminates on the basis of sex,” Dungan said.
Other legal issues Langwardt raised with the bill include violating a doctor’s 1st Amendment right and the basic right to care for one’s child.
“A lot of laws regulate speech in different ways, but the government usually cannot regulate speech based on the point of view behind that speech,” he said.
The debate in the room continues, but potential legal issues also remain.
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