Nebraska health care providers are scrambling to provide best-practice gender-affirming health care to transgender young people under a new set of emergency regulations that conflict with accepted standards of care.
The emergency regulations, part of a broader law barring most minors from receiving gender-affirming medical care in Nebraska, require mental health care providers to administer at least 40 hours of “gender-identity-focused” therapy to transgender children and adolescents seeking gender-affirming medical care.
Treatment must be “clinically neutral,” according to the new regulations, issued Oct. 1 by the state health department, and must not be given in either a “gender affirming or conversion context.”
Gender-affirming health care providers in Nebraska say they are unsure how to proceed under the emergency regulations, which clash with standards of care set by the World Professional Association of Transgender Health (WPATH) and the Endocrine Society, and they fail to offer clear definitions of terms that are essential to the regulations’ implementation.
Camie Nitzel, a licensed psychologist and the founder of Kindred Psychology in Lincoln, Neb., said her practice does not know exactly what the state means by “gender affirming.”
“It’s unclear whether this statement is using affirming as an adjective or a ban on using the empirically supported gender affirmative model, which is a best-practice model,” Nitzel said in an interview.
“The rule as we’re interpreting it,” she said, “is prohibiting the use of the best and the most empirically supported treatment for transgender youth that we have available to us.”
Nebraska lawmakers in May passed legislation prohibiting health care professionals from providing transgender youths younger than 19 with gender-affirming medical care, including surgical procedures, hormone replacement therapy and puberty blockers. An amendment adopted by the state’s unicameral Legislature carved out an exception for transgender youths already receiving care.
The bill, Legislative Bill 574, was quickly signed into law by Nebraska’s Republican Gov. Jim Pillen, who said parents are being “duped” into believing their children are transgender during a signing ceremony in May at the state capitol in Lincoln. “That is absolutely Lucifer at its finest,” he said.
The new law, which also bans abortion after 12 weeks of pregnancy, gives Nebraska’s chief medical officer, Dr. Timothy Tesmer, broad authority to craft a set of rules dictating how health care providers may legally administer care to transgender youths prescribed puberty blockers or hormones before Oct. 1.
Pillen approved a set of preliminary regulations issued by Tesmer’s office on Oct. 1, when Legislative Bill 574, also known as the “Let Them Grow Act,” went into effect. A draft of the proposed final regulations is expected to be posted on the health department’s website by Oct. 28, and a public hearing is slated for Nov. 28 in Lincoln.
The emergency regulations as written add steep barriers to accessing gender-affirming care, providers told The Hill. They characterized the therapy provision, which requires transgender youths to attend at least 40 hours of therapy to be eligible to receive puberty blockers or hormones, as particularly burdensome.
According to the new regulations, after an initial four-hour assessment, transgender children and adolescents may receive a maximum of two hours of therapy per week, meaning they would be eligible to receive gender-affirming medical care after five months at the earliest.
Coupled with a national shortage of mental health care providers, “we could be talking years to get to 40 hours,” said Dr. Nicole Chaisson, director of gender-affirming care for Planned Parenthood North Central States, which serves Minnesota, Iowa, Nebraska and South Dakota.
“That’s totally unnecessary,” she said. “It’s just a mess.”
WPATH guidelines do not require transgender minors or adults to undergo any set number of therapeutic hours to receive gender-affirming medical care.
Chaisson added that the regulations’ requirement for therapy to be provided in a manner that is “not gender affirming” may open the door to conversion therapy, a discredited practice that aims to change a person’s sexual orientation or gender identity. She said she is not reassured by language in the regulations clarifying therapy should not be given in a “conversion context.”
“Everything we do with patients should be gender and identity affirming, even if they choose not to be on hormones,” Chaisson said. “Even if I see a cisgender woman, I should be gender affirming.”
Nebraska’s emergency regulations also disproportionately impact transgender boys by prohibiting injectable medications from being administered anywhere outside of a doctor’s office, according to Leslie Dvorak, owner of Pride Health Clinic in Omaha, Neb.
Doses of testosterone are commonly administered via an injection, while estrogen is typically taken orally. Transgender youths receiving hormone replacement therapy injections likely will need to be pulled out of school, and parents will have to miss work to comply with the new regulations.
“I don’t know how that’s going to be for a family to be able to come to a clinic every week,” Dvorak said, noting children with diabetes are still able to inject their insulin medication at home.
“I think it’s going to be a barrier to care,” she said.
Like Chaisson, Dvorak said she worries how the new regulations will affect the caseloads of mental health providers specializing in gender-affirming care, a workforce she described as scarce. Her practice, which sees transgender youths as young as 14, receives at least three new patients each day, she said.
“My concern is the lack of mental health providers that see adolescents,” Dvorak said. She also worries how the regulations will impact funding and insurance coverage.
Still, Dvorak said she’s trying to remain optimistic about the regulations’ ability to act as a pathway to care.
“I’m glad that the emergency guidelines have been put in place because I feel like some of the community have been so worried about Oct. 1,” she said.
Britta Tollefsrud, a licensed mental health practitioner at Kindred Psychology, said her sigh of relief was more short-lived.
“The more we dove into [the regulations], especially as mental health clinicians, we realized that there are certain requirements and certain ways that this positions us in a really difficult position,” she said.
“What the Nebraska Legislature has really done and asked of us as clinicians in the last legislative session — and now especially with the emergency regulations — is to make a decision between practicing with best practices and practicing legally,” she added.
“It is always dangerous when legislators start legislating health care,” said Nebraska state Sen. Machaela Cavanaugh, a Democrat who spearheaded a marathon 12-week filibuster this legislative session to protest Legislative Bill 574.
“We are not experts in the medical field; we are not experts in the specific health care we’re trying to legislate,” she said.
Any treatment plan crafted by politicians “is not going to be thoughtful,” Cavanaugh said, “because we do not have the expertise and training and background to make it thoughtful.”
She levied similar criticisms against Tesmer, the state’s chief medical officer, who has not professionally treated transgender patients. Tesmer was a physician specializing in ear, nose and throat otolaryngology before he was appointed by Pillen in February.
In a letter addressed to Tesmer this month, Nebraska state Sen. Megan Hunt, an independent who filibustered alongside Cavanaugh this session and the mother of a transgender child, said some transgender youths exempt from Legislative Bill 574’s restrictions are reportedly being turned away from pharmacies.
“Apparently, some pharmacists are refusing to refill prescriptions issued by healthcare providers,” Hunt wrote in the letter.
Tesmer’s office did not respond to questions from The Hill about Hunt’s letter, but a health department spokesperson confirmed to the Nebraska Examiner that the agency received and is reviewing it.
The emergency regulations will remain in effect for 90 days. A legal challenge brought against Legislative Bill 574 by the American Civil Liberties Union (ACLU) of Nebraska is ongoing, with oral arguments expected to be made before the state Supreme Court early next year.