At first glance, Omaha family medicine physician Alex Dworak was pleasantly surprised by the gender-affirming care regulations for minors proposed by the state health department. The new rules, he initially believed, aligned with the standards he already employed in his practice.
But it wasn’t long before he ran into concerns.
When the temporary regulations on puberty blockers and hormone therapy for people under 19 took effect in October, Dworak said, it added stress and confusion for him and his patients. Now that similar regulations are proposed to take effect permanently, Dworak and other local health professionals are speaking out to criticize aspects of the proposal they believe create unnecessary barriers to care.
“This could be a de facto ban,†Dworak said.
The regulations are a statutory requirement under LB574, which was signed into law earlier this year. Nebraska Chief Medical Officer Timothy Tesmer created the temporary regulations to take effect for 90 days starting Oct. 1, avoiding a potential full ban on puberty blockers and hormone therapy that otherwise would have taken effect.
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Then, according to a Department of Health and Human Services document, Tesmer consulted with medical, psychological and behavioral health specialists in the department on the permanent proposal, which added some small changes to the temporary regulations. Those have yet to take effect, with a public hearing scheduled for Tuesday at the Lancaster Event Center.
Among the regulations are several waiting periods, including that patients must live at least six months in their preferred gender, receive at least 40 hours of therapy and wait seven days after having their prescription before obtaining the medication.
Under these criteria, Dworak said, a patient could possibly wait one to three years before receiving treatment, not counting potential delays in finding an available therapist.
Dawn Darling, a licensed social worker for a therapy service in Kearney, said therapists are in high demand, with many having waitlists. Mandated therapy is extra difficult for those who have lower incomes, lack insurance coverage or live in rural areas.
Additionally, she said, the 40-hour requirement doesn’t align with how most therapists measure their sessions. Rather than going by hourly increments, Darling said many therapists’ sessions go for 45 or 75 minutes, which will make it more difficult to ensure their clients meet the requirement.
A DHHS document said 40 hours was chosen as the requirement to ensure a thorough understanding of the patient’s needs. It notes that some gender-affirming care can have lasting effects on the body, so a patient should be aware of the commitment involved. A department official said the regulations intend to enforce a balanced approach to this treatment while not creating undue barriers.
Mandatory therapy came up as part of the legislative debate on LB574 earlier this year, with at least one lawmaker, state Sen. Jana Hughes of Seward, citing it as part of her reasoning for supporting the bill. She raised concerns after learning that Planned Parenthood doesn’t require that clients 16 and older receive therapy before prescribing hormones.
Hughes advocated for a slower approach, arguing that because some gender-affirming medications have lasting effects, minors should go through some therapy to ensure there aren’t other factors contributing to their desire for the treatment.
“We’re talking about kids here,†Hughes said.
Nicole Chaisson, director of gender-affirming care for Planned Parenthood of North Central States, said that while Planned Parenthood doesn’t require therapy, it does follow an informed consent model that requires parental consent and an extensive conversation about the effects of hormone therapy.
Chaisson said she does evaluate her clients’ mental state during these meetings, and while in some extreme cases she has denied hormones to adults, that hasn’t happened yet with younger clients, who have to be 16. She said Planned Parenthood trusts clients and their parents to know what’s best for them, whether that includes therapy or not.
Many supporters of LB574 contended that minors’ brains aren’t developed enough to be trusted to seek these medications, but some health officials have disputed this. Dworak said humans can realize their gender identity as young as 3 years old; Chaisson said that by 16, people’s brains are developed enough to be capable of pursuing gender-affirming care under a sound mind.
Dworak added that many of his younger clientele have consistently and persistently talked with their parents for a long time before they reach him, at the stage where prescriptions are issued.
“Usually, they’ve been waiting for a while to get to me,†he said.
Darling, who has worked with transgender patients for the past nine years, said therapy isn’t always necessary for people seeking gender-affirming care, although many still do it. In fact, she said mandated therapy was once part of worldwide standards for transgender care, but it has since been phased out in favor of a more individualized system.
“This is kind of just trying to take us back in time,†Darling said.
There were also concerns with the regulation’s guidelines for the therapy hours. According to the proposal, the 40 hours must be “gender-identity-focused†but also be “clinically objective and non-biased†and “not merely affirm the patient’s beliefs.â€
This language raised red flags for several mental health professionals, including Sen. John Fredrickson of Omaha, one of two openly LGBTQ+ Nebraska lawmakers and an opponent of LB574. Fredrickson said he chuckled when he read this part of the proposal, because it was evident it wasn’t written by people within the mental health field.
“All therapy is clinically neutral — that’s how therapy works,†Dworak said.
The language is difficult enough to interpret that Chaisson said Planned Parenthood has halted prescribing hormones to new patients younger than 19 in Nebraska until it is clear how the regulations will affect its practice.
Darling said therapy that is both unbiased and doesn’t affirm the client’s identity is inherently contradictory. She said the guidelines seem to promote therapists taking a doubtful stance where the client has to convince their therapist that they are trans. She said that runs counter to an environment that is supposed to feel safe and welcoming.
Darling questioned whether using a client’s preferred pronouns would violate these guidelines. A DHHS official said it wouldn’t, but Darling argued the language is uncomfortably similar to an emerging anti-trans approach to therapy that is growing in popularity in states that have passed similar laws to LB574.
Fredrickson said it will be nearly impossible to enforce whether a therapist even follows these guidelines, as therapy sessions are confidential and protected under federal law. Including it at all, he said, suggests that the state is trying to nitpick something that doesn’t need regulating.
“That’s extraordinarily petty to me,†Fredrickson said.
Beyond issues with the therapy regulations, Chaisson brought up concerns with the proposal’s pharmaceutical regulations. Specifically, she criticized a provision that would require injectable forms of puberty blockers and hormones be administered by a credentialed professional with the prescribed practitioner’s office, or by the patient’s primary care provider.
Chaisson argued this unnecessarily targets trans men, as the most efficient and accessible way to administer the hormone testosterone is via injection, while estrogen can be easily ingested through a pill.
Typically, Chaisson said Planned Parenthood trains its clients how to inject themselves from home, similar to how diabetic patients can give themselves insulin shots. With injections typically administered every one to four weeks, requiring that younger patients receive them outside their home is a significant time commitment, she said.
DHHS said this requirement was included to ensure that patients receive the proper dosage and that their side effects are monitored by professionals. Because of a grandfather clause in LB574, patients under 19 who were receiving injectable treatment before Oct. 1 can continue doing so at home if they wish.
In contrast to the concerns raised by health professionals, LB574’s introducer, Sen. Kathleen Kauth of Omaha, said the proposed regulations don’t go far enough to restrict gender-affirming care. She said she’s heard similar concerns privately from medical professionals who are scared to speak up, but she hopes they will share their thoughts at Tuesday’s hearing.
Dworak said the proposed regulations intend to have a chilling effect on patients and professionals in the gender-affirming care field. The way the language is written, he said, it sends a message to medical professionals that they shouldn’t be practicing in this type of care.
In the past year since LB574 was introduced, Dworak said at least five of his transgender patients have left Nebraska out of safety concerns, despite being older than the age limit set in the bill. A majority of his remaining patients also have plans to leave, he said.
The rhetoric during the debate and lack of interest in the views of medical experts have made Dworak question his future in the state.
Darling said the proposed regulations could very well exacerbate the shortage of health care providers in Nebraska. If that happens, Dworak said that will affect more than just transgender patients, as most professionals within the gender-affirming care field work in other fields as well.
“This is going to hurt all Nebraskans,†he said.
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