NH House Committee Okays Incarceration Based Solely on “Gender Identity”

A promising bill faced a dramatic reversal in committee this week. Cornerstone has strongly supported the original text of HB 1180 – “state recognition of biological sex” – a modest bill introduced by Rep. Linda Gould that clarifies New Hampshire state identification laws to say that schools, prisons, and other public agencies reserve the right to differentiate based upon biological sex.

A Monday amendment to the bill by the House Health and Human Services Committee, however, not only fails to accomplish Rep. Gould’s objectives, but actively makes the situation worse and endangers women.

By omitting key language, the HHS Committee amendment reverses Rep. Gould’s intent, legally ushering in dangerous California-style incarceration policies. Granite Staters must call on their state representatives to do everything they can to reject the HHS Committee amendment in a roll call vote and then vote to pass Rep. Gould’s important bill in its original form.

Just over a year ago, California imposed a dramatic gender ideology experiment on women’s prisons. It decided that whether an inmate is incarcerated in a men’s or women’s prison will now be based solely on self-declared gender identity – without consideration of whether the transgender-identifying inmate has even received any kind of medical transitioning. The results have been horrific.

Just months after California’s policy was adopted, dozens of biological males had already transferred to the Central California Women’s Facility. Many of these men have never had any sex-reassignment surgery or even taken hormonal medication. One former inmate in the Women’s Facility told The Wall Street Journal, “They’re getting a full erection. So you’re locked in this room, 24/7, with a man and there’s nothing you can do about it.”

Fortunately, New Hampshire’s Department of Corrections (DOC) has a much more moderate policy—for now. If an inmate is transgender, our state’s DOC makes a case-by-case determination as to which facility to send that inmate – weighing the safety of the individual inmate and the safety of the general prison population.

For example, a biologically male inmate in New Hampshire would likely be transferred to a women’s prison only if he had received medical transitioning procedures. The key point is that New Hampshire DOC – under its current policies – does not automatically transfer inmates based on self-declared gender identity.  

While some conservatives may disagree with the current NH DOC policy, it is a far cry from the cruel system used by California, which utterly sacrifices the dignity and safety of women inmates on the altar of crazed gender ideology.

However, New Hampshire could be at risk in the near future of having a California-style system imposed upon it by a federal court. And on Monday, the HHS Committee, perhaps unknowingly, passed an amendment that has brought New Hampshire dangerously closer to this dystopian scenario.

Some legal background is necessary to understand why this is the case. New Hampshire already has liberal state identification laws, allowing Granite Staters to freely select whatever gender they choose on their driver’s licenses. Elsewhere in the country, liberal federal courts are using similar state laws to mandate that any official distinction between the sexes must be made according to these state documents alone.

In Adams v. School Board, for example, the Eleventh Circuit Court of Appeals ruled that the category of “biological sex” does not exist—except as defined by the state on identifying documents such as driver’s licenses. In the Adams case, a Florida school board sought to treat a biologically female student, who identified as a male, according to the student’s biological sex. But the Eleventh Circuit ruled that, because Florida’s legislature had allowed the student to list “male” on state identifying documents, Florida had officially taken the position that the student’s “sex” was male—period.

The court explained that “as a court of law, we cannot simply ignore the legal definition of sex the state [of Florida] has already provided us, as reflected in the official documentation of Mr. Adams’s sex as male on his driver’s license and birth certificate.”

In order to prevent confusion and these kinds of abusive interpretations, NH Rep. Linda Gould and other women legislators courageously introduced HB 1180: “relative to state recognition of biological sex.” This simple clarification would amend our state identification laws to add the following language:

Nothing in [NH state identification laws] is intended to prohibit any public entity from differentiating between the male and female sexes in athletic competitions, criminal incarceration, or places of intimate privacy, or otherwise to deny or undermine the state’s rational interest in recognizing the male and female sexes. In this paragraph, “the male and female sexes” refers to biologically male and female human beings.

Rep. Gould’s bill would not force any school board or state agency to change their current policies. On the contrary, her bill is necessary to protect the DOC’s current policy. Although the NH DOC might not realize it, its current policy actually depends upon biological sex categorization.  

After all: when a “cisgender” woman is incarcerated in New Hampshire, the NH DOC does not do a case-by-case analysis to determine whether to imprison her with men. She is simply incarcerated in a women’s prison.

It is only transgender inmates who the NH DOC subjects to a case-by-case analysis. Using the language of the left, the DOC therefore treats “transgender women” differently from “non-transgender women.”

The difference between a “transgender women” and a “non-transgender women” is, of course, her biological sex. It is biological sex that the NH DOC is using to differentiate between these groups of people—whether or not the DOC itself wants to use that term.     

On Monday, the House HHS Committee placed this current DOC policy in dangerously legal jeopardy. The Committee amended Rep. Gould’s amendment to remove everything after “athletic competitions.”

At first glance, the Committee amendment may seem like it is merely a weakening of Rep. Gould’s bill. In fact, it is a disaster. If passed into law, the HHS Committee amendment would tee up legal arguments for those who wish to force New Hampshire to adopt California-style incarceration policies.  

If the HHS Committee amendment were passed into law, groups such as GLAAD, the ACLU, and others would be quick to point out that New Hampshire has specifically stated that it recognizes the category of “biological sex” only in the area of athletic competitions. In all other situations, the HHS amendment legally implies that courts should default to state documents in determining whether an individual must be treated as male or female.

This means the HHS amendment would put women in more danger than they are today. Currently, we might argue in court that – when the legislature adopted our current state identification statutes – it did not realize that judges might interpret them to mean that the state does not recognize biological sex. But the HHS Committee amendment would show courts beyond all doubt that our legislature specifically considered this very consequence, and chose only to recognize biological sex in athletic competitions.

At Cornerstone, we appreciate that compromises are sometimes necessary. We recognize that not everything can be achieved at once. In fact, Rep. Gould’s original bill – which we strongly support – is perhaps the most minimalist bill on gender issues a conservative could possibly introduce.

But the HSS Committee version of HB 1180 is not a halfway measure or a compromise: it is a potential calamity for women. We urge you to call on your state representatives to do everything they can to reject the HHS Committee amendment in a roll call vote and then to pass Rep. Gould’s important bill in its original form.

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