This story was originally published in the Nebraska Examiner.
LINCOLN — Nebraska lawmakers on Friday filed a minority statement — a never-before-used tactic — to oppose legislation that would restrict what gender-affirming care minors could receive in the state.
Sens. Machaela Cavanaugh and Jen Day, both of Omaha, issued the statement ahead of debate on Legislative Bill 574 on Tuesday.
Dubbed the “Let Them Grow Act,” the bill proposed by Sen. Kathleen Kauth of Omaha would prohibit performing procedures or referring patients for procedures such as puberty blockers, hormone therapies or genital or non-genital surgeries before the age of 19.
Physicians who violate the act would be subject to civil penalties.
The approximately four-page rebuttal from Cavanaugh and Day, members of the Health and Human Services Committee, acts similarly to a dissenting opinion in judicial proceedings.
State Sen. John Arch of La Vista, speaker of the Legislature, announced Thursday that debate on LB 574 would begin Tuesday, an agreement he made with Cavanaugh to move on to future issues. Before that shift, Cavanaugh filibustered for 13 legislative days straight.
“We both agreed that it would be best to stop talking about the issue on other bills, but rather debate the bill itself,” Arch said on the floor Thursday.
Clerk of the Legislature Brandon Metzler confirmed Friday that while minority or concurring statements have been discussed in the past, they’ve never been used.
“We never see it done, but it’s basically the ability to add your individual thoughts to a piece of legislation coming out of committee that you may either agree or disagree with the majority,” Metzler said.
History in the making
The Nebraska Examiner obtained a copy of the minority statement Friday. Metzler said it might not be available through the Legislature’s website until Tuesday morning.
Multiple sections of the statement note that organizations including the Nebraska Medical Association and American Medical Association have determined that gender-affirming care, which LB 574 would outlaw, is best practice.
“These professionals and associations testified in opposition at the Committee Hearing on the bill to these findings,” one section reads. “The Minority Committee Members object to the current form of this section as it does not reflect mainstream medical or scientific consensus. Discussion within the Committee to amend or clarify this section was not accommodated by the Majority.”
Nearly every section concludes with those final two sentences.
Kauth has cited opposing research, including people who transitioned but later regretted their decisions.
Day said Cavanaugh started the conversation regarding the minority statement, a tool to counteract what she said were imbalances in leadership positions and committee assignments from the beginning of the session.
The statement also serves as a legal record as similar legislation has faced legal challenges nationwide, Day said. Those challenges include a similar law in Arkansas currently blocked while pending legal challenges play out.
The committee vote to advance the proposal split along ideological lines — Sens. Ben Hansen of Blair (committee chair), Brian Hardin of Gering, Merv Riepe of Ralston and Beau Ballard of Lincoln voted in favor. Cavanaugh, Day and Sen. Lynne Walz of Fremont voted against advancement.
Walz did not draft the minority statement with Cavanaugh or Day. She could not be immediately reached for comment Friday.
Hansen said he was “not surprised” Cavanaugh and Day filed the statement, adding much of what is included the pair had already discussed.
He disagreed that discussions were not accommodated, just that Cavanaugh and Day did not have the votes to amend the bill.
Cavanaugh and Day write that they have questions about how the term “refer” is used, including whether that is verbal or written, informal or formal.
“[LB 574] could easily be used to trap a practitioner who is not familiar with this area of practice and merely suggests another professional for consultation,” the minority statement reads.
The senators also object to a clause that would prohibit state funds from going to entities that perform such prohibited procedures on minors. Cavanaugh and Day state that the federal government has recognized gender-affirming care as fitting within multiple Medicaid categories, which mandates “no discriminatory practices” in state-run programs.
LB 574 allows individuals to bring a civil action against practitioners who provide the procedures “within 2 years from discovery of damages.” Cavanaugh and Day said it’s unclear whether that’s from when a procedure is performed.
The pair also write that LB 574 would bring “profound changes” to the practice and credentialing of various health professionals and did not include compliance with the Credentialing Review Program, or “407 Process,” which is required of the Legislature.
How a filibuster works
A senator is able to bottle up debate by filing priority motions, such as a motion to recommit a bill back to a committee or to “bracket” a bill to a later date, which is a way to kill a bill. Such priority motions must be immediately considered and grant time for the senator who introduced it to talk for 10 minutes, and for others to debate in three five-minute segments.
If such delaying motions fail, a senator can file a motion to reconsider the vote, triggering more time to burn.
Eventually, after eight hours of debate, a senator can ask for a “cloture” motion to end the filibuster and immediately vote to advance a bill. Since the Legislature has been holding floor debate only in the mornings, such delaying tactics can postpone the advancement of a bill for three days.
Former State Sen. Ernie Chambers of Omaha was the master of the filibuster, using it to delay consideration of bills he opposed and forcing the Legislature to seek some compromise with him.
Years ago, filibusters were rare in the Legislature. Without a filibuster, it takes 25 votes — a majority in the 49-seat Unicameral — to pass a bill. But now, filibusters are common on any controversial bill, mounted by both liberals and conservatives, which means it takes 33 votes, or two-thirds of the body, to pass a measure.
Filibuster will resume Tuesday
State Sen. Julie Slama of Dunbar offered a censure motion Wednesday against Cavanaugh for stating that legislation such as LB 574 would lead to a genocide of transgender people.
Cavanaugh told the Examiner on Friday that “it seemed like things were getting to a tipping point,” and she sought to shift her approach.
“The best thing for the trans community and their families is to have [LB 574] defeated, and then we can all move forward,” Cavanaugh said.
If that happens, Cavanaugh said, that doesn’t mean she will not filibuster any more legislation this session. It will just be “the bills I usually filibuster.”
Cavanaugh said “anything is worth it” to save the lives of children, especially transgender Nebraskans, who face higher suicide rates and bullying.
‘Pretty confident’ votes are not there
Debate on LB 574 will likely stretch until midmorning Thursday due to afternoon hearings. At the eight-hour mark, Kauth can file a cloture motion to end debate, which requires 33 votes.
Cavanaugh and Day both said Friday they believe that will not happen, with Cavanaugh “certain.”
“Assuming that the trans bill fails, the anti-affirming care bill fails on cloture, then hopefully we as a Legislature can move forward and stop trying to legislate hate,” Cavanaugh told CNN’s Jake Tapper on Friday (another in a handful of national media appearances Cavanaugh has made since filibustering).
Day said efforts against the bill but noted things can always change “in the matter of moments.”
“We feel pretty confident going into the debate on this that Senator Kauth does not have the votes, but there is no guarantee on that,” Day said.
Kauth ready for ‘uphill battle’ of debate
So far, 23 senators have signed onto LB 574, including one Democrat in the officially nonpartisan Legislature. If that support holds, Kauth would need nine more votes.
Kauth noted it’s “entirely possible” she does not reach 33 votes.
“It is going to be an uphill battle,” Kauth said Friday. “This is a very, very tough, tough discussion.”
She pointed to other prioritized legislation by State Sens. Joni Albrecht of Thurston on abortion, Lou Ann Linehan on school funding and Tom Brewer of Gordon regarding guns and said LB 574 is just the “first round” of discussion.
Kauth added that floor debate on LB 574 could have happened in February, and the filibustering led by Cavanaugh “really just delayed the inevitable and wasted a lot of time.” She said bills with bipartisan support might not be considered this session because of those actions.
In a statement to CNN, Kauth said that Cavanaugh saying she doesn’t care if anything gets done during this legislative session “reflects the total disregard for the citizens of Nebraska.”
“By postponing the debate through the filibuster, Senator Cavanaugh has thrown away our ability to hear bills on many topics,” Kauth said. “It’s been a selfish calculation to gain attention cloaked in the insincere guise of defending gender dysphoric youth — at the expense of our constituents.”
Nebraska Examiner senior reporter Paul Hammel contributed to this report.