Some Nebraska senators raise concerns over legality of gender-affirming care ban

OMAHA, Neb. (WOWT) - On Day 2 of the three-day debate on LB574, some state senators have raised concerns about the legality of the bill opposing gender-affirming care for youth.

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

“You’ll throw away the Constitution,” Conrad said. “You’ll throw away your conscience. You’ll throw away this institution to pursue a hateful, 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. “Nobody wants to talk about it; but we need to talk about it.”

These senators may feel like their arguments are falling on deaf ears, a sentiment reiterated by State Sen. Steve Erdman of Bayard.

“We could debate this until June 9th, and no one’s going to change their opinion,” he said.

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

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

Attorneys argued the Arkansas law violated the equal protection clause in the Constitution allowing care to be given to cisgender kids, but banning that same care for transgender kids.

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

UNL assistant law professor Kyle Langvardt explained the legality of LB574.

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

Under the proposed bill, if a biological female needed breast tissue removed to transition for gender-affirming care, it would be banned, he said. However, if a biological male needed that same tissue surgery for another purpose, that would be allowed.

State Sen. Jen Day of Omaha asked about the situation of breast implants. If a biological female under 18 wanted breast implants, that is legal with parental consent. If a biological male wanted breast implants to transition, that would be banned under the bill.

“This law, on the face of it, discriminates based on sex,” Dungan said.

Other legal issues Langvardt rose with the bill include violating a doctor’s 1st Amendment right and the fundamental right to care for your own child.

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

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

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